E   ROBERT   E.  COWAN  COLLECT! 

I'KKSKNTKl)    TO    TI1K 

UNIVERSITY  OF  CALIFORNIA 

\;\ 

C.  P.  HUNTINGTON 

ME. 


Accession  No, 


Class  No, 


BANCROFT'S   LINE   OF   BLANKS, 

COMPRISING  I 

MECHANICS'    LIEN. 

COMPLAINT    ON    MECHANICS'    LIEN- 

LEASES,  DEEDS, 

COUNTY  COURT  BLANKS,  MORTGAGES, 

DISTRICT  COURT  BLANKS,  ACKNOWLEDGEMENTS, 

PROBATE  COURT  BLANKS,  AGREEMENTS, 

BANKRUPTCY  COURT  BLANKS.  BONDS, 

CUSTOM  HOUSE  BLANKS,  BY-LAWS, 

» 

POWERS  OF  ATTORNEY,  BILLS  OF  SALE, 

DECLARATION  AND  ABANDONMENT  OF  HOMESTEAD, 
CERTIFICATE  OF  CHARACTER,  ABILITY,  ETC.,  FOR  PARTIES 
DESIRING  TO  OBTAIN  EMPLOYMENT, 

ETC.,  ETC.,  ETC. 
THE  FINEST  LINE  OF  BLANKS  EVER  PUBLISHED. 

H,  H.  BANCROFT  &  COMPANY, 

BOOKSELLERS  AND  STATIONERS, 

SAN   FRANCISCO. 


TREATISE 


ON    THE 


MECHANIC'S  LIEN  LAW, 


OF    CALIFORNIA. 


(PASSED  MARCH  30,   1868. 


WITH 


APPENDIX, 


CONTAINING  THE   VARIOUS   FORMS   REQUIRED   UNDER  THE  ACT,  TOGETHER 
WITH  A  COPY  OP  THE  ACT,  AND  AN 


AMPLE    HSTDEX. 


BY    P.    G.    BUCHAN, 

COUNSELLOR-AT-LAW. 

• 


SAN     FRANCISCO: 

H  .     H  .     BANCROFT     &COMPANY 

1868. 


F  A.C  E  - 


The  law  passed  at  the  last  session  of  our  Legislature  on  the 
subject  of  Mechanics'  Lien  has  a  most  important  effect  as  well 
upon  the  rights  of  mechanics,  laborers,  and  persons  furnishing 
materials  for  the  construction  and  repairs  of  buildings  and 
other  superstructures,  as  upon  the  rights  of  those  owning  and 
making  improvements  on  real  estate.  It  has  also  an  important 
effect  on  the  rights  of  capitalists  and  loan  societies  lending  money 
on  mortgage.  It  is  very  clear,  that  without  proper  precautions,  a 
real  estate  owner  may,  through  this  Act,  be  compelled  to  pay  a 
much  larger  sum  for  improvements  than  he  has  contracted  to  pay, 
and  may  even  be  made  personally  responsible  on  demands  for 
which  he  never  contemplated  a  personal  liability,  while  those  hav- 
ing mortgages  or  other  equitable  claims  upon  the  land  may  be 
seriously  affected  in  their  rights.  The  Act  is  a  very  crude  and 
inconsistent  piece  of  legislation,  and  requires  many  amendments 
for  the  benefit  as  well  of  the  mechanic  as  the  owner  i-f  real 
estate.  Still,  it  will  remain  the  law  of  the  land  till  the  year  1870, 
as  no  legislation  is  likely  to  be  had  on  it  till  that  time.  It  was 
thought  by  the  author  of  this  brief  treatise,  that  in  the  meantime  a 
work  of  this  character,  with  the  forms  given  in  the  appendix,  might 
be  useful  to  the  community,  and  that  when  amendments  are  made 
by  the  next  Legislature  a  second  edition  can  be  issued. 

Most  of  the  States  have  Mechanics'  Lien  Laws,  and  decisions 
have  been  rendered  under  them  in  the  Courts  of  the  different 
States  where  they  exist.  But  the  Lien  Law  of  one  State  differs 


4  PREFACE. 

materially  from  that  of  another.  The  different  decisions  in  the 
State  Courts  on  the  subject  have  more  'reference  to  the  peculiar 
language  of  the  statute  in  the  State  in  which  the  decision  is  made 
than  to  any  general  principle,  and  a  reference  to  such  decisions 
would  tend  only  to  confusion  and  verbosity.  The  author  has 
confined  his  authorities,  therefore,  principally  to  decisions  ren- 
dered by  the  Supreme  Court  of  this  State  on  former  laws  of  a  simi- 
lar character.  Those  decisions,  and  the  application  of  the  general 
principles  of  equity  jurisprudence  to  the  provisions  of  the  Act, 
and  the  peculiar  cases  which  are  likely  to  arise  under  it,  will 
enable  any  professional  man  to  arrive  at  a  tolerably  correct  con- 
clusion as  to  all  questions  under  the  Act  on  which  he  may  be 
called  upon  to  give  his  opinion. 

If  this  little  work  will  tend  in  any  degree  to  aid  in  protecting 
the  rights  of  the  Laborer  and  Mechanic,  and  at  the  same  time 
enable  the  owners  of  real  estate  to  protect  themselves  from  the 
creation  and  payment  of  unjust  claims  and  demands  against 
them,  the  object  of  the  author  will  be  obtained. 

P.  G.  BUCHAN. 

SAN  FRANCISCO,  August  1st,  1868. 


I  S  E 


ON    THE 


MECHANICS'  LIEN  LAW  OF  CALIFORNIA, 


The  Act  on  this  subject,  as  passed  by  the  Legisla- 
ture of  California,  on  the  30th  of  March,  1868,  is  of 
great  importance  to  our  citizens,  and  ought  to  be  gen- 
erally understood,  as  well  by  mechanics  and  laborers, 
as  by  all  engaged  or  interested  in  the  erection  of  build- 
ings, or  superstructures  of  any  kind. 

The  Act  is  of  a  very  broad  and  comprehensive  scope 
and  character.  It  gives  every  mechanic,  artisan,  ma- 
chinist, builder,  contractor,  lumber  merchant,  laborer, 
or  other  person  performing  labor  upon,  or  furnishing 
materials  of  any  kind,  to  be  used  in  the  construction, 
alteration  or  repair,  either  in  whole  or  in  part,  of  any 
building,  wharf,  bridge,  ditch,  flume,  tunnel,  fence,  ma- 
chinery, railroad,  wagon  road,  mining  claim,  aqueduct 
to  create  hydraulic  power  for  mining  or  other  pur- 
poses, or  any  other  structure  or  superstructure,  or  who 
shall  perform  labor  in  any  mining  claim,  a  lien  upon" 
the  same  for  work  or  labor  done  or  "materials  fur- 
nished by  each  respectively. 

Those  persons  are  to  have  a  lien  whether'  the  work 
is  done  or  the  materials  furnished,  at  the  instance  of 


6  TREATISE — MECHANICS'  LIEN  LAW. 

the  owner  of  the  building  or  other  improvement,  or  of 
his  agent. 

For  the  purposes  of  the  Act,  every  contractor,  sub- 
contractor, architect,  builder,  or  other  person  having 
in  charge  the  construction,  alteration  or  repair,  either 
in  whole  or  in  part,  is  to  be  held  to  be  the  agent  of  the 
owner.  This,  we  presume,  however,  has  reference  to 
the  particular  department  in  which  the  sub-contractor 
may  be  employed.  For  instance  :  a  sub-contractor  for 
the  brick  work  certainly,  without  special  authority, 
would  not  be  authorized  to  employ  the  plasterers,  nor 
a  sub-contractor,  to  perform  the  plastering,  authorized 
to  employ  the  painters,  and  yet  the  language  of  the 
Act  is  broad  enough  to  cover  just  such  a  case.  Under 
this  Act,  if  a  builder  contracts  to  erect  a  building,  and 
afterward  contracts  with  a  painter  to  do  the  painting, 
and  the  painter  omits  to  pay  his  journeymen  engaged 
on  the  work,  or  to  pay  the  merchant  from  whom  he 
has  purchased  the  painting  materials,  each  of  his  jour- 
neymen and  the  paint  dealer  would  have  a  right  to  a 
lien  on  the  building ;  each  of  the  journeymen  for  his 
work  and  the  paint  dealer  for  his  materials  furnished, 
entirely  independent  of  the  price  agreed  by  the  owner 
of  the  land,  to  be  paid  to  the  builder. 

The  Act  embraces  every  possible  construction,  im- 
provement or  repairs,  and  covers  all  those  cases  where 
the  Supreme  Court  of  this  State  had  formerly  decided 
the  lien  law  did  not  reach;  and  lest  there  should  be 
any  room  for  misconstruction  as  to  the  work,  for  which 
a  lien  will  lie  under  the  first  section  of  the  Act,  the 
fourteenth  section  declares  that  the  words  "  building  or 
"  other  improvements,  whenever  the  same  are  used  in 


TREATISE MECHANICS'    LIEN   LAW.  7 

"this  Act,  shall  be  held  to  include  and  apply  to  any 
"  wharf,  bridge,  ditch,  flume,  tunnel,  fence,  machinery, 
"railroad,  wagon  road,  aqueduct  to  create  hydraulic 
"  power,  or  for  mining  or  other  purposes,  and  all  struc- 
"  tures  and  superstructures,  whenever  the  same  can  be 
"  made  applicable  thereto,  and  the  words  i  construc- 
"  tion,  alteration  or  repair,'  whenever  the  same  are  used 
"  therein,  shall  be  held  to  include  partial  construction 
"  and  all  repairs  done  in  and  upon  any  building  or 
"  other  improvement." 

By  the  former  Act,  and  as  decided  by  the  Supreme 
Court  in  the  case  of  Dore  vs.  Sellers,  27  CaL,  R.  591, 
and  also  in  the  case  of  Bowen  vs.  Aubrey,  23  CaL,  E. 
563,  the  employees  of  a  contractor  could  not  enforce 
their  lien  to  an  amount  exceeding  the  sum  for  which 
the  contractor  had  a  lien,  which  was  only  to  the  amount 
due  on  his  contract  for  the  construction  of  the  build- 
ing. But  by  this  Act,  the  employees  engaged  in  the 
construction  by  the  contractor,  are  in  no  way  bound 
by  the  price  or  rate  of  compensation  agreed  upon  be- 
tween the  owner  of  the  property  and  the  contractor  he 
has  employed.  It  is  clear,  therefore,  that  under  this 
Act,  the  owner  may  be  made  to  pay  an  amount  far  ex- 
ceeding the  contract  price  for  the  construction  of  the 
building,  and  in  addition  to  this,  as  will  be  seen  after- 
ward, he  is  liable  for  the  expense  of  attorney  and 
counsel,  in  preparing  each  lien  arid  in  carrying  on  to 
judgment  the  action,  which  may  be  instituted  to  fore- 
close the  lien. 

There  are  three  modes  of  guarding  against  this  on 
the  part  of  the  owner. 

First — By  taking  a    bond   with  sufficient  sureties 


8  TEEATISE — MECHANICS'  LIEN  LAW. 

from  the  builder  for  the  performance  of  his  contract, 
and  to  indemnify  the  owner  against  the  creation  of 
any  liens  under  this  Act. 

Second — As  all  liens,  except  the  original  contractor's, 
must  be  filed  within  thirty  days  after  the  completion 
of  the  building,  by  making  the  payments  for  the  work 
to  become  due  more  than  thirty  days  after  the  comple- 
tion of  the  building,  and  making  it  a  condition  in  the 
contract  precedent  to  payment,  that  no  lien  shall  then 
be  on  the  land ;  or — 

Third — By  a  clause  in  the  contract,  that  no  pay- 
ment shall  be  made  unless  the  architect  in  charge  of 
the  building,  or  some  other  person,  to  be  selected  for 
that  purpose,  shall  be  first  satisfied  and  shall  so  certify 
to  the  owner  that  all  the  work  done  and  the  materials 
furnished,  have  been  paid  for. 

If,  in  addition  to  the  evidence  by  receipts,  which  the 
architect  in  such  a  case  would  of  course  require,  he 
took  the  contractor's  statement  in  writing,  that  all  the 
workmen  and  material  men  had  been  paid,  and  it  turned 
out,  in  fact,  after  the  payment  to  the  contractor,  that 
such  claims  had  not  been  paid,  the  contractor,  under 
the  131st  section  of  the  Act,  as  to  u  crimes  and  punish- 
ments," in  reference  to  obtaining  money  under  false 
pretenses,  and  the  376th  section  of  the  Criminal  Practice 
Act,  requiring  the  pretense  to  be  in  writing,  would  be 
liable  to  be  indicted,  if  he  made  the  statement  know- 
ingly and  designedly  and  with  intent  to  defraud. 

Forms  of  contracts  and  of  a  bond,  etc.,  in  pursuance 
of  the  above  suggestions,  will  be  found  in  the  appen- 
dix. 

Where  the  work  done  consists  in  erecting  or  repair- 


TREATISE MECHANICS'    LIEN   LAW.  9 

ing  a  building  surrounded  by  land,  the  mode  of  making 
the  lien  effectual,  and  its  extent  on  the  surrounding 
land,  is  clearly  enough  pointed  out  by  the  statute  ;  but 
although  a  lien  is  declared  for  other  works,  repairs  and 
improvements,  besides  buildings,  the  statute  does  not 
point  out  upon  what  the  lien  is  to  be.     By  the  second 
section,  the  land  upon  which  any  building  or  other  im- 
provement shall  be  constructed,  together  with  a  con- 
venient space  about  the  same,  "  or  so  much  as  may 
"be  required  for  the  convenient  use  and  occupation 
"  thereof,  shall  be  subject  to  the  liens  created  by  this 
"  Act."     But  take,  for  instance,  the  building  of  a  fence 
around  a  fifty  acre  lot,  or  the  erection  of  abridge  across 
a  stream,  or  the  making  of  a  wagon  road,  or  the  erec- 
tion of  a  wharf,  or  excavating  a  tunnel,  or  erecting  an 
aqueduct  to  convey  water  to  a  mill  or  a  mine,  how 
much  or  what  interest  the  workman  or  contractor  is  to 
have  in  the  mill  or  mine,  in  the  field  surrounded  by  the 
fence,  or  in  the  bridge  or  wagon  road,  or  how  that  in- 
terest or  lien  is  to  be  made  effectual,  is  not  declared  or 
provided  for  in  the  Act  at  all.     The  only  similar  case 
where  it  is  provided  for,  and  the  lien  defined,  is  in  a 
separate  section  in  the  case  of  a  person,  at  the  request 
of  the  owner,  grading,  filling  in,  or  otherwise  improving 
a  lot  in  a  city  or  town,  or  the  street  in  front  of  or  ad- 
joining it.    In  that  case,  for  the  labor  done  and  materials 
furnished,  a  lien  is,  by  section  nine,  given  on  the  whole 
lot.     This  section  is  nearly  the  same  as  the  21st  section 
of  the  Act  of  1862.     The  Supreme  Court  of  the  United 
States,  in  a  recent  case  (Gordon  vs.  The  South  Fork 
Canal  Company),  concerning  a  question  of  lien  on  a 
canal  or  ditch  leading  to  a  mine,  decided  (Judge  Field 


10  TREATISE — MECHANICS'  LIEN  LAW. 

dissenting)  that  the  lien  applied  only  to  the  part  of 
the  ditch  or  canal  made  or  repaired,  and  to  nothing  else. 
The  Act  in  this  particular  requires  amending.  The  ex- 
tent of  the  lien  over  the  mill  or  mine,  to  which  the 
flume,  ditch  or  aqueduct  leads  or  is  attached,  or  over 
the  franchise  or  tolls  in  case  of  a  wagon  road  or  bridge, 
should  be  distinctly  defined. 

A  lien  is  also  given  by  section  15  of  the  Act  on  per- 
sonal property,  where  the  mechanic,  artisan  or  laborer 
alters  or  repairs  any  article  of  personal  property  at  the 
request  of  the  owner.  This  is  adopting  the  common 
law  as  to  a  mechanic's  lien  for  work  of  that  character, 
but  the  manner  of  "the  mechanic's  availing  himself  of 
the  lien  by  sale  of  the  article  which  was  not  provided 
for  by  the  common  law,  is  distinctly  provided  for  in 
that  section,  and  of  which  we  will  speak  hereafter 
when  we  come  to  treat  of  the  various  remedies  given. 

We  have  stated  above  the  various  liens  created  by 
this  Act,  and  we  will  now  come  to  the  mode  and  man- 
ner in  which  they  are  thereby  made  effectual. 

The  second  section  of  the  Act  provides  that  the  land 
on  which  the  building  or  improvement  is  erected,  with 
a  space  around  it  convenient  for  its  use  and  occupation, 
shall  be  subject  to  the  lien  created  by  the  Act,  if  at  the 
time  the  work  was  commenced,  or  the  materials  had 
been  commenced  to  be  furnished,  it  then  belonged  to 
the  person  causing  the  construction  of  the  building,  im- 
provement or  repairs.  If  such  person  owned  less  than 
a  fee  simple,  then  only  his  interest  in  the  real  estate  is  to 
be  subject  to  the  lien.  If  the  interest  is  a  leasehold 
interest,  and  the  lessee  shall  have  forfeited  his  right, 
the  purchaser  of  the  building  and  of  the  leasehold 


TREATISE — MECHANICS'  LIEN  LAW.  11 

term,  or  so  much  thereof  as  remains  unexpired  at  a  sale 
in  proceedings  under  this  lien  law,  shall  be  held  to  be 
the  assignee  of  the  lease,  and  shall  be  entitled  to  pay 
the  lessor  the  arrears  of  rent  and  costs  due,  unless  the 
"lessor  shall  have  regained  possession  or  obtained  judg- 
"  ment  for1  possession  prior  to  the  commencement  of  the 
"  construction,  alteration  or  repair  of  the  building"  If 
the  lessee  had  forfeited  the  lease,  and  a  judgment  had 
been  obtained  against  him  before  the  commencement  of 
the  construction,  or  if  the  lease  became  forfeited  and 
the  lessor  had  legally  obtained  possession  before  the 
construction,  it  is  difficult  to  perceive  that  the  lessee 
had  any  interest  in  the  land  or  building  at  the  com- 
mencement of  the  construction  or  repair;  yet  the 
Act  goes  on  to  say:  "In  which,  event  said  purchaser 
"  shall  have  the  right  only  to  remove  the  building 
"  within  thirty  days  after  he  shall  have  purchased  the 
"  sa  ne,  and  the  owner  of  the  land  shall  receive  the  rent 
"due  him,  payable  out  of  the  proceeds  of  the  sale 
"  according  to  the  terms  of  the  lease  down  to  the  time 
"  of  such  removal." 

It  is  very  questionable  whether,  so  far  as  leases  in 
existence  at  the  time  of  this  Act  going  into  operation 
are  concerned,  those  provisions  are  constitutional,  where 
they  conflict'  with  or  alter  the  terms  of  the  lease.  Sup- 
pose that  a  lease,  in  existence  before  the  Act  went  into 
effect,  provided  that  in  the  event  of  the  non-payment 
of  the  rent,  at  the  time  conditioned  for  its  payment, 
the  lease  should  become  void  and  the  term  end,  or  that 
at  the  termination  of  the  lease,  either  by  the  expira- 
tion of  the  term  or  by  forfeiture,  all  buildings  or  im- 
provements erected  or  made  by  the  tenant  should  be- 


12  TREATISE — MECHANICS'  LIEN  LAW 

come  the  property  of  the  landlord,  can  the  Legislature 
afterwards  entirely  change  that  contract,  and  not  only 
give  the  legal  assignee  of  the  lease,  under  this  Act,  more 
rights  than  the  lessee,  but  take  from  the  lessor  property, 
the  right  to  which  had  vested  in  him  by  solemn  con 
tract,  made  before  any  such  Act  was  passed  ?  The  six- 
teenth section  of  Article  1st  of  the  Constitution  of 
this  State,  provides  that  "  no  ex  post  facto  law,  or  law 
"impairing  the  obligation  of  contracts,  shall  ever  be 
"  passed,"  and  the  Supreme  Court  of  this  State  have 
given  effect  to  this  section  in  Smith  v.  Morse,  2  CaL, 
R  524;  Thorn,  v.  Hayes,  4  CaL,  R.  127;  Tallant  v. 
Woods,  7  CaL,  R.  579  ;  Skinner  v.  Bucli,  29  CaL,  R. 
253.  Again:  suppose  the  building  is  the  landlord's, 
and  the  improvements  are  made  on  it  by  the  tenant, 
under  a  lease  made  before  this  Act  took  effect ;  could 
the  lien-holder  sell  and  the  purchaser  remove  the  land- 
lord's building  and  pay  him  his  rent  with  the  proceeds 
of  his  (the  landlord's)  own  property  ?  This  would  be 
not  only  manifestly  illegal  and  unjust,  but  absurd. 

In  reference  to  leases  made  subsequent  to  the  passage 
of  the  Act,  there  is  probably  no  question.  Where  the 
lessee  has  any  interest  at  the  time  of  the  commence- 
ment of  the  improvement,  the  building  becomes  liable, 
and  the  purchaser,  at  the  lien  sale,  is  entitled  to  pay 
the  lessor  the  arrears  of  rent,  and  the  lessor  is  bound 
to  receive  them.  But  suppose  the  purchaser  removes 
the  building,  as  he  has  a  right  to  do  by  section  3,  what 
is  to  become  of  the  building,  a  part  of  which,  or  the 
whole  of  it,  may  be  the  landlord's,  after  the  lease  has 
expired  ?  It  is  a  part  of  the  leased  property.  Who  is 
to  be  at  the  expense  of  removing  it  back  ?  It  may  be 


TEEATISE — MECHANICS'  LIEN  LAW.  13 

removed  by  the  purchaser  miles  from  its  original  loca- 
tion on  the  leased  land.  If  the  purchaser  has  a  right 
to  move  it  one  foot,  he  has  a  right  to  move  it  one  mile, 
and  it  may  be  utterly  destroyed  in  the  attempt  to  re- 
place it.  Suppose  that  the  lease  contains  a  covenant? 
that  at  the  end  of  the  term  the  lessee  is  to  leave  the 
premises  in  as  good  condition  as  at  the  commencement 
of  the  term;  in  what  position  does  it  place  the  purchas- 
er and  the  landlord  ?  The  Act  makes  the  purchaser  of 
the  building  "the  assignee  of  the  leasehold  term." 
The  assignee  of  a  lease  is  personally  liable  on  all  the 
covenants  in  the  lease  running  with  the  land  binding 
on  the  original  lessee  as  long  as  he  remains  assignee  or 
retains  possession,  so  that  it  would  appear  that  the 
purchaser  is  not  only  personally  liable  for  the  rent  re- 
served in  the  lease,  but  to  damages  for  the  non-fulfilment 
of  all  such  covenants  contained  in  it,  such  as  the  cov- 
enants to  repair,  pay  rent,  taxes  or  assessments,  etc. 
In  short,  he  takes  it  subject  to  all  the  equities  existing 
between  the  lessor  and  lessee.  See  Taylors  landlord 
and  tenant,  Sec.  437. 

As  to  the  assignee  of  a  lease,  however,  our  Supreme 
Court  has  decided  in  Johnson  v.  Sherman,  15  Cal., 
287,  that  "  an  assignee  of  a  lease  may  discharge  him- 
"  self  from  all  liability  under  the  covenants  in  the  lease 
"  by  assigning  over ;  and  the  assignment  may  be  to  a 
"  beggar  or  a  femme  covert,  even  though  a  premium  is 
"  given  as  an  inducement  to  accept  the  transfer."  So 
that  a  purchaser  of  premises  under  this  lien  law,  though 
declared  by  the  Act  to  be  assignee  of  the  lease  by 
reason  of  his  becoming  such  purchaser,  may  rid  himself 
of  his  liability  in  the  same  manner  as  the  defendant  in 
the  case  of  Johnson  v.  Sherman. 


14  TEEATISE — MECHANICS'  'LIEN  LAW. 

On  the  subject  of  liens  on  leased  property,  the  Act 
is  full  of  crudities,  absurdities  and  contradictions,  and 
perhaps  those  provisions  will  never  be  taken  advantage 
of,  and  it  may  be  that  no  question  upon  them,  under 
this  Act,  will  ever  arise.  It  is  probable  that  no  at- 
tempt will  be  made  to  enforce  a  lien  in  reference  to 
leased  property,  except  in  cases  of  a  long  and  valua- 
ble lease,  and  where  it  is  an  object  for  the  purchaser  to 
assume  the  performance  of  the  covenants  in  the  lease, 
and  where  the  leased  property  consists  of  a  single  build- 
ing. The  second  section  provides  for  a  lien  on  the 
building  erected,  repaired  or  improved  upon,  whether 
held  by  lease  or  otherwise,  and  so  much  space  around 
as  may  be  required  for  its  convenient  use.  The  build- 
ing improved  upon  or  repaired  may  be  only  one  of  two 
or  more  buildings  erected  on  the  leased  land.  The 
purchaser  under  the  lien  Act  is  to  become  the  assignee 
of  the  lease.  He  must  become  the  assignee  of  the 
whole  lease  and  not  of  a  part.  There  is  no  provision 
in  the  Act  to  the  contrary.  Two  tenants  cannot  be 
forced  on  the  landlord.  There  is,  besides,  no  provision 
for  an  apportionment  of  the  rent  or  a  segregation  or 
division  of  the  leased  premises  provided  for  by  the  Act. 
Indeed,  in  reference  to  leased  land,  except  so  far  as  we 
have  already  indicated,  there  seems  an  utter  want  of 
legislation  to  carry  the  Act  into  effect,  or  render  it  in- 
telligible. 

All  liens  created  by  the  Act,  are,  by  section  three, 
to  be  preferred  to  any  lien,  mortgage,  or  other  incuni- 
brance  which  may  have  attached  subsequent  to  the  com- 
mencement of  the  building  or  improvement,  or  the 
commencement  of  furnishing  materials ;  and  also  to  all 


TEE  ATISE*— MECHANICS'    LIEN   LAW.  15 

unrecorded  incumbrances,  though  existing  before  such 
commencement.  Under  the  old  Act,  an  unrecorded 
mortgage  had  priority.  (Rose  v.  Munie,  4  Cal.,  K. 
173.) 

But  then  follows  the  following  somewhat  ambiguous 
clause : 

"  All  liens  created  by  this  Act  upon  any  building  or 
"  other  improvement,  shall  be  preferred  to  ALL  prior 
"  liens,  mortgages  or  other  incumbrances  upon  the  land 
"  upon  which  said  building  or  other  improvement  shall 
"  have  been  constructed  or  situated  WHEN  altered  or 
"  repaired? 

If  this  means  anything,  it  means  that  when  the  lien 
is  for  an  alteration  or  repair,  as  distinguished  from  an 
original  construction,  the  lien  shall  have  preference  to 
all  prior  incumbrances.  This  is  calculated  to  work 
very  great  injustice.  An  illustration,  by  a  case  which 
is  likely  to  be  of  common  occurrence,  will  show.  A 
owns  a  house  and  lot  worth  $4000.  The  lot  is  worth 
$1000,  and  the  building  worth  $3000,  and  the  title  to 
the  property  is  clear  and  unencumbered.  He  borrows 
$2000  on  it  from  B,  and  gives  a  mortgage  on  the  pro- 
perty to  secure  the  loan.  During  the  currency  of  the 
mortgage  A  undertakes  to  alter  his  building  by  adding 
a  wing  or  other  improvement,  and  runs  in  debt  $1000 
or  more  for  it.  That  debt  may  be  made  a  lien  on  the 
house  prior  to  B's  mortgage,  the  house  sold  under  this 
law,  and  removed,  and  the  mortgagee  left  nothing  but 
the  bare  lot  as  a  security  for  his  money. 

In  enforcing  the  liens  under  this  Act,  the  same  sec- 
tion provides  that  the  building  or  other  improvement 
may  be  sold  separately  from  the  land,  and  when  so  sold 


16  TEEATISE MECHANICS7    LIEN    LAW. 

the  purchaser  may  remove  the  same  from  the  land 
within  a  reasonable  time,  not  exceeding  thirty  days, 
upon  the  payment  to  the  owner  of  the  land  of  a  reasona- 
ble rent  for  its  use  from  the  date  of  the  purchase  to 
the  time  of  removal.  Whether  tiiis  is  meant  to  apply 
to  leased  land,  or  to  land  which,  since  the  structure 
was  erected,  has  become  the  property  of  another  than 
he  who  was  the  owner  at  the  time  of  the  improve- 
ment, does  not  appear.  Perhaps  the  latter  is  meant, 
for  in  the  preceding  section,  the  purchaser,  in  the 
case  of  leased  land,  is  made  the  assignee  of  the  lease, 
and  is  therefore  liable  for  the  rent  as  such.  Who  is  to 
decide  what  is  a  reasonable  rent  for  the  use  of  the  land, 
is  not  provided  for.  The  purchaser,  therefore,  must 
tender  sufficient,  at  his  peril.  It  is  provided,  however, 
that  if  the  removal  is  prevented  by  legal  proceedings, 
the  thirty  days  shall  not  begin  to  run  until  the  final 
determination  of  such  proceedings  in  the  Court  of  First 
Resort,  or  in  the  Appellate  Court,  if  an  appeal  be  taken. 

The  fourth  section  of  the  Act  provides  that  every 
building,  improvement,  etc.,  mentioned  in  the  first  sec- 
tion of  the  Act,  constructed  upon  any  lands,  with  the 
knowledge  of  the  owner  or  person  having  or  claiming 
any  interest  therein,  shall  be  held  to  have  been  con- 
structed at  the  instance  of  such  owner  or  person  having 
or  claiming  to  have  an  interest  therein,  and  the  inter- 
est owned  or  claimed  shall  be  subject  to  the  lien,  unless 
such  owner  or  person,  having  or  claiming  any  interest 
therein,  shall,  within  three  days  after  he  shall  have 
obtained  "  a  knowledge  of  the  construction,  alteration 
"  or  repair,  or  the  intended  construction,  alteration  or 
"  repair,  give  notice  that  he  will  not  be  responsible  for 


TEEATISE MECHANICS'    LIEN   LAW.  17 

"  the  same,  by  posting  a  notice  to  that  effect  in  some 
"  conspicuous  place  upon  said  land,  or  upon  the  build- 
"  ing  or  other  improvement  situated  thereon." 

If  it  is  to  be  held  that  the  work  was  done  "  at  the 
instance "  of  the  party,  then  the  party  at  whose  in- 
stance it  is  done,  is  personally  liable.  And  that,  evi- 
dently, is  the  construction  to  be  given  to  the  Act,  be- 
cause to  relieve  himself,  he  is  to  give  notice,  not  that 
his  land  will  not  be  subject  to  the  lien,  but  that  "  he 
will  not  be  responsible."  The  first  question  is,  to  what 
class  of  persons  does  this  apply  ?  It  cannot,  of  course, 
refer  to  the  person  who  contracts  to  have  the  building 
erected,  or  the  improvement  or  repairs  made,  because 
such  person  would  be  personally  liable  without  any 
such  legislative  provision,  and  "  every  contractor,  sub- 
"  contractor,  architect,  builder,  or  other  person,  having 
"  charge  of  the  work,  is  held  for  the  purposes  of  the 
"  Act  to  be  to  the  agent "  of  the  owner  so  contracting, 
and  the  acts  of  the  authorized  agent  are  the  acts  of  the 
principal.  Again :  the  principal  owner  of  the  land  may 
not  be  in  actual  possession,  and  the  land  may,  at  the 
time  of  the  improvement,  be  in  the  occupation  of  some 
one  claiming,  in  good  faith,  title  adverse  to  the  true 
owner,  and  the  true  owner  may  afterwards  obtain  judg- 
ment in  an  action  of  ejectment  against  the  one  in  posses- 
sion, and  at  whose  instance  the  building,  improvement 
or  repairs  have  been  made,  and  yet,  it  would  seem  by 
this  Act,  that  unless  the  true  owner  gave  the  notice 
required,  within  three  days  after  the  knowledge  of  the 
construction,  or  the  intention  to  construct  came  to  his 
notice,  his  land  would  not  only  be  subject  to  the  lien, 
but  he  would  be  personally  liable.  Perhaps,  in  con- 


18  TEEATISE — MECHANICS'  LIEN  LAW 

sequence  of  the  uncertain  state  of  land  titles  in  Cali- 
fornia, it  was  only  intended  by  the  Legislature  to  make 
the  lien  good  as  against  the  true  owner,  where  the 
work  was  done  by  a  person  in  possession  claiming  title, 
leaving  the  remedy  to  the  true  owner,  to  give  the  no- 
tice required,  and  thus  save  himself  and  his  land  from 
liability  for  such  a  lien. 

How  far  this  section  is  to  aifect  persons  having,  in 
the  language  of  the  Act,  an  interest,  or  claiming  any 
interest,  or  what  kind  of  interest  is  meant,  it  is  impos- 
sible to  say : — whether  it  means  a  claim  to  the  whole 
or  a  part,  an  equitable  title  or  interest,  tax  title, 
sheriff's  certificate,  or  what,  is  not  defined. 

It  may  be  questionable  whether  it  would  apply  to  a 
landlord,  in  view  of  the  other  provisions  of  the  Act,  in 
reference  to  leased  land,  yet  the  language  of  the 
statute  is  certainly  broad  enough  to  cover  such  a  case. 
If  it  does,  then,  when  a  tenant  intends  to  make  an  im- 
provement, or  makes  an  improvement  on  leased  land, 
for  which  a  lien  can  be  created  under  the  Act,  the  land- 
lord, to  save  himself  and  his  land  from  liability,  must, 
within  three  days  after  the  intention  to  make  the  im- 
provement, or  the  making  the  improvement  comes  to 
his  knowledge,  give  the  notice  required.  Forms  of  no- 
tice, under  this  provision,  will  be  found  in  the  appen- 
dix. 

By  the  fifth  section  of  the  Act,  every  original  con- 
tractor, claiming  the  benefit  of  the  Act,  must,  within 
sixty  days  after  the  completion  of  his  contract,  file  with 
the  Recorder  of  the  county  in  which  the  improvement, 
or  some  part  of  it  is  situated,  a  claim  containing  a  true 
statement  of  his  demand,  after  deducting  all  just 


TREATISE — MECHANICS'    LIEN   LAW.  19 

credits  and  offsets,  with  the  name  of  the  owner  or  re- 
puted owner,  if  known ;  and  also  the  name  of  the  per- 
son by  whom  he  was  employed,  and  a  description  of 
ilie  property  to  be  charged  with  the  lien,  sufficient  for 
identification,  which  is  to  be  verified  by  his  own  oath, 
or  that  of  some  other  person. 

Every  mechanic,  artisan,  machinist,  builder,  lumber 
merchant,  miner,  laborer  or  other  person,  save  the  origi- 
nal contractor,  claiming  a  lien,  must  do  the  same  with- 
in  thirty  clays  after  the  completion  of  any  building, 
mining  claim,  or  other  improvement,  or  the  perform- 
ance of  any  labor  in  any  mining  claim,  or  after  the 
completion  of  the  alteration  or  repair  thereof. 

In  stating  the  demand  in  the  notice,  it  is  not  neces- 
sary that  the  items  of  the  account  should  be  set  forth. 
A  statement  of  the  demand,  showing  its  amount  and 
character,  has  been  deemed  to  be  sufficient,  under  simi- 
lar provisions  in  the  old  Act.  See  Selden  v.  Jfefe, 
17  Cal.,  R.  128  ;  JBrennan  v.  Swas&y,  16  Cal.,  K.  140  ; 
Heston  v.  Martin,  11  Cal.,  K.  41.  The  name  of  "the 
u  person  by  whom  he  was  employed,  or  to  whom  he 
"furnished  the  materials,"  must  also  be  stated.  By  the 
Act  of  1856,  this  was  only  required  inferentially  under 
the  language,  u  a  just  and  true  account  of  the  demands 
due  "  the  claimant,  and  under  that  Act  the  Supreme 
Court,  in  TilUts  v.  Moore,  23  Cal.,  E,.  209,  held  that 
where  the  notice  of  lien  states  that  the  materials  were 
furnished  to  A  &  Co.,  when  in  fact  they  were  furnished 
to  A,  it  does  not  invalidate  the  lien,  for  the  mate- 
rial fact  is  whether  the  materials  were  furnished  for  and 
used  in  the  construction  of  the  building  on  which  the 
lien  is  claimed.  But  as  the  language  of  the  present 


20  TEEATISE — MECHANICS'  LIEN  LAW 

Act  is  explicit,  it  is  well  to  comply  strictly,  and  give 
the  true  name  of  the  person  by  whom  the  claimant  was 
employed. 

The  next  point  to  be  attended  to  in  the  notice,  is  the 
description  of  the  property  u  to  be  charged  with  the 
lien."     In  the  case  of  a  wharf,   bridge,  ditch,   fence, 
wagon  road,  aqueduct,  etc.,  already  alluded  to,  it  will  be 
difficult  to  describe  the   property  to  be  charged  with 
the  lien,  as  it  is  not  pointed   out  by  the  statute.     It 
would  be  well,  in  such  cases,  however,  to  describe  the 
improvement   and   the   premises  to    which   they   are 
appurtenant,  leaving  to  the  Court  to  decide  under  this 
Act  how  far  the  lien  shall  extend  and  be  effectual.     In 
other  cases,  in  reference  to  the  description  generally,  we 
would  say  it  must  be  so  certain  that  the  sheriff,  on  a 
writ  of  restitution  or  assistance,  could  clearly  identify 
the  land  and  premises  described,  and  deliver  the  pro- 
perty according  to  the  description.     Such  phrases  as 
"  about  so  many  feet "  one  way  or  the  other,  will  not 
answer.     The  Act  provides  that  the  notice  shall  con- 
tain a  description  "  sufficient  for  identification."     The 
Act  of  1856   required  the  party  claiming  the  lien  to 
file  "  a  correct  description  of  the  property  to  be  charged 
with  the  lien."     Under  that  Act  the  Suprarne  Court 
held  in  Montrose  v.  Conner,   8  CaL,  R.  344,  that  the 
following  notice  does  not  contain  such  a  description  as 
the  statute  contemplates  :  "A  dwelling   house  lately 
"  erected  by  nie  for  J.  W.  Conner,  situated  on  Bryant 
"  street,  between  Second  and  Third  streets,  in  the  city 
"  of  San  Francisco,  on  lot  No.  -    — ,"  and  the  fact  that 
Conner  owned  no  other  building  on  that  street,  would 
not  cure  the  defect.     Ilotaling  v.  Cronise,  2   CaL,  R. 


TEEATISE — MECHANICS'  LIEN  LAW.  21 

60,  and  Tillits  v.  Moore,  23  CaL,  K.  208,  give  instan- 
ces of  descriptions  held  to  be  sufficient  under  that  Act. 
There  is  no  danger  of  claiming  too  much  land,  but  only 
to  be  sure  that  the  superstructure  or  improvement, 
and  the  necessary  land  around,  are  within  the  bounda- 
ries given,  because  the  Court,  in  its  decree  on  the  fore- 
closure of  the  lien,  will  restrict  the  recovery  to  so 
much  only  as  the  Act  allows,  or  as  the  Court  may  de- 
cide to  be  a  "  convenient  space  "  around  the  same,  or 
as  they  may  allow,  "  for  the  convenient  use  and  occu 
pation  thereof."  (Sec.  2.) 

It  is  important  that  the  name  of  the  true  owner 
should  be  stated.  The  statute  says  the  name  of 
"  the  owner  or  reputed  owner,  if  known."  But  in 
every  case  there  should  be  in  the  notice  the  name  of 
the  person  in  whose  name  the  title  to  the  property 
arjpears  last  of  record  in  the  recording  office,  so  that 
the  record  of  the  lien  may  be  notice  to  all  subsequent 
purchasers  and  incumbrancers. 

The  Act  provides  that  the  claim  shall  be  verified  by 
"  the  oath  of  himself  (the  claimant)  or  some  other 
person."  The  verification  should  be  by  an  affidavit, 
annexed  to  the  claim.  Where  not  sworn  to  by  the 
claimant  himself,  it  is  proper  that  it  should  be  shown 
on  the  face  of  the  affidavit  why  it  is  made  by  another 
person,  his  knowledge  of  the  facts  stated  in  the  claim, 
and  the  relation  he  bears  to  the  claimant  as  attorney, 
agent  or  otherwise.  Besides  giving  the  credits  and  off- 
sets in  the  claim  itself,  the  affidavit  should  distinctly 
state  that  the  amount  claimed  is  over  and  above  all 
just  credits  and  offsets,  or,  to  use  the  precise  language 
of  the  Act,  that  the  amount  claimed  is  due  "  after  de- 


22  TEEATISE — MECHANICS'  LIEN  LAW. 

ducting  all  just  credits  and  offsets."  The  consequence 
of  an  omission  of  such  a  statement  is  discussed  and  de- 
cided in  the  case  of  Davis  v.  Livingston,  29  Cal.,  R. 
283,  where  the  question  arose  under  the  fifth  section 
of  the  Act  of  1862.  The  notice  under  that  section  of 
that  Act  was  required  to  be  of  the  nature  and  extent 
of  the  claim  over  and  above  all  payments  and  set-offs, 
The  Court  decided  that  the  omission  in  the  notice  of 
such  a  statement,  was  fatal. 

In  reference  to  the  time  when  the  notice  shall  be 
filed,  there  is  some  confusion  in  the  Act,  and  an  unfortu- 
nate adoption  of  the  language  of  the  Act  of  1862, 
which  was  founded  on  an  entirely  different  principle 
from  the  present  Act. 

The  original  contractor,  if  there  is  one,  is  to  file  his 
claim  within  sixty  days  after  "  the  completion  of  Ms 
contract"  It  will  be  sometimes  difficult  to  say  what 
constitutes  the  completion  of  the  contract.  Sometimes, 
although  the  original  contract  may  be  in  writing,  it 
may  become,  as  it  frequently  does  in  building  contracts, 
so  varied  by  subsequent  parole  agreements,  waivers,  ex- 
tensions, extra  work,  alterations  of  plan,  etc.,  that  the 
original  contract,  in  its  main  features,  is  substantially 
lost  sight  of  and  abandoned.  The  rule,  in  such  a  case, 
in  fixing  a  time  and  deciding  whether  the  claim  is  filed 
in  time,  is  to  come  as  near  the  substantial  completion 
of  the  contract  as  originally^  intended  as  possible, 
taking  into  consideration  all  the  subsequent  modifica- 
tions, In  reference  to  sub-contractors  and  other  per- 
sons doing  labor  or  furnishing  materials,  the  language 
is  different,  and  is  variant  and  unsatisfactory.  The 
claim  in  such  case  is  to  be  filed  within  thirty  days  after 


TEEATISE — MECHANICS'  LIEN  LAW.  23 

the  completion  of  any  building,  mining  claim,  or  other 
improvement ;  and  as  to  labor  in  any  mining  claim,  the 
Act  says,  "  after  the  performance  of  any  labor  in  any 
mining  claim,  or  after  the  completion  or  repair  there- 
of." It  is  probable  that,  as  to  labor  in  mining  claims, 
the  Legislature  meant  that,  as  a  man  may  work  or  do 
labor  in  a  mine,  which  labor  may  not  consist  either  in 
completing  it  or  repairing  it,  in  such  case  he  should  be 
entitled  to  a  lien,  and  should  file  his  notice  or  claim  in 
thirty  days  after  the  performance  of  the  labor.  If  so, 
it  will  apply  to  every  laborer  in  all  kinds  of  mines, 
whether  gold,  silver,  copper,  coal,  quicksilver,  or  any 
other  ore  or  material.  It  is  an  unfortunate  provision, 
that  the  claim  of  the  sub-contractors  and  others,  on 
buildings,  is  required  to  be  filed  thirty  days  after  the 
completion  of  the  building  or  improvement,  instead  of 
thirty  days  after  doing  of  the  labor  or  furnishing  the 
materials,  because  what  "  completion  "  means  must  de- 
pend upon  the  original  contract,  which  it  is  often  diffi- 
cult to  get  at.  There  may  be  a  dispute  between  the 
owner  and  original  contractor  as  to  when  the  building 
contracted  for  is  complete,  which  may  be  in  litigation 
for  years.  The  contract  may,  in  its  progress,  be  altered 
so  that  the  building  is  to  be  left  incomplete,  and 
yet  the  contract  may  be  completed  /  as,  for  instance,  a 
contract  may  provide  for  the  finishing  a  house  by 
painting  it,  outside  and  in,  yet  the  contractor  and 
owner  may  change  the  contract  by  making  the  build- 
ing, or  the  contract  complete  when  it  is  lathed  and 
plastered.  What  shall  constitute  the  completion  of  the 
work  may  be,  and  usually  is,  a  matter  between  the 
original  contractor  and  owner,  that  the  sub-contractor, 


24  TEEATISE — MECHANICS'  LIEN  LAW. 

mechanic  or  laborer  knows  nothing  about.  So  far  as 
the  owner  is  concerned,  it  is  right  that  he  should 
know  with  certainty  within  what  time  sub-contrac- 
tors, and  those  doing  labor  and  furnishing  materials, 
are  bound  to  file  their  claims,  so  that  he  can  settle  with 
the  original  contractor,  without  the  danger  of  paying 
twice. 

As  the  law  makes  the  owner  really  liable,  through 
his  property,  for  what  he  may  never  have  contracted 
to  pay,  it  would  have  been  well  that  the  Legislature 
had  re-enacted  the  law  of  1856,  which  provided  that 
"  sub- contractors,  journeymen,  laborers,  and  other  per- 
sons performing  labor  or  furnishing  materials,"  should 
file  their  claims  within  thirty  days  "  after  the  work 
was  done  or  materials  furnished."  The  Act  of  1862, 
as  we  remarked,  was  founded  on  a  different  principle 
from  the  old  lien  law  or  the  present  one.  It  enabled 
the  mechanic  or  laborer  to  recover  only  through  the 
principal  contractor,  and  through  his  contract  with  the 
owner,  and  then  not  any  amount  beyond  what  was  to 
become  due  on  his  contract ;  nor  at  all,  unless  notice 
was  given  to  the  owner  before  the  payments  on  the 
contract  became  due.  In  that  case  there  was  a  pro- 
priety in  determining  the  time  of  filing  the  notice  to  be 
thirty  days  after  the  completion  of  the  building.  Li- 
the new  Act,  the  Legislature  has  retained  the  language 
of  the  Act  of  1862,  though  the  reason  for  it  does  not 
now  exist.  / 

To  avoid  all  question,  it  may  be  as  well,  in  all  cases, 
to  file  the  claim  within  thirty  days  after  the  work  is 
done  or  the  materials  furnished. 

We  have  been  particular  in  setting  forth  what  is 


TREATISE — MECHANICS'  LIEN  LAW.  25 

necessary  to  be  contained  in  the  claim,  and  the  time  of 
its  service,  because  our  Supreme  Court,  in  the  case  of 
Davis  v.  Livingston,  29  CaL,  R.  283,  above  referred  to, 
(Judge  Shafter  delivering  the  opinion  of  the  Court), 
decided  that  the  remedy  given,  even  by  the  Act  of 
18(52,  was  an  extraordinary  one,  and  therefore  "  all 
u  the  provisions  of  the  Act  must  be  strictly  complied 
u  with."  In  Bottomly  v.  Grace  Church,  2  CaL,  E.  90, 
Judge  Heydenfelt,  delivering  the  opinion  of  the  Court 
on  the  Lien  Law  of  1850,  decided  that  the  language 
of  the  Act  was  sufficiently  explicit,  and  must  be  strict- 
ly construed,  because  it  gave  rights  in  derogation  of 
the  Common  Law.  Afterwards,  in  Tut  tie  v.  Montford, 
7  CaL,  R.  359,  Judge  Burnett  delivering  the  opinion  of 
the  Court,  decided  that  the  lien  of  the  mechanic,  arti- 
san and  material  man,  is  favored  in  law,  because  those 
parties  have,  in  part,  created  the  very  property  on 
which  the  lien  attaches.  In  McCrea  v.  Craig,  23  CaL, 
R.  523,  Judge  Crocker,  in  delivering  the  opinion  of  the 
Court,  used  nearly  the  same  language.  He  said : 
"  Although  the  lien  is  created  by  and  depends  upon  a 
"  compliance  with  the  terms  of  the  statute,  yet  it  is  a 
u  favored  lien,  because  the  very  property  upon  which 
"  the  lien  attaches  has  been  created  by  the  labor  or 
"  materials  furnished  by  the  person  claiming  the  lien." 
Such  are  the  conflicting  opinions  of  our  Judges  on  a 
very  important  principle.  The  decision  in  Tuttle  v. 
Montford  and  in  McCrea  v.  Craig,  may  be  more  in 
conformity  with  the  principles  of  equity  and  the  spirit 
of  the  age,  than  that  in  Bottomly  v.  Grace  Church, 
which  they  overruled  ;  but  the  opinion  in  Davis  v. 
Livingston,  is  the  last,  and  therefore  the  controlling 


26  TREATISE — MECHANICS'  LIEN  LAW. 

decision  and  the  law  of  the  State,  until  changed  by 
some  subsequent  decision  of  our  Supreme  Court.  In 
all  the  preliminary  steps,  therefore,  before  proceeding 
to  enforce  the  lien,  it  is  necessary  that  the  proceedings 
should  be  accurate,  and  strictly  comply  with  the  statute, 
or  the  lien  may  be  lost.  We  have  given  in  the  appen- 
dix various  forms  and  claims  under  the  Act  named, 
according  to  the  position  to  the  building,  structure  or 
improvement  the  claimant  may  occupy. 

The  County  Recorder  records  the  claim  in  a  book 
to  be  kept  by  him  for  that  purpose,  and  his  fees  are 
the  same  as  are  allowed  by  law  for  recording  deeds 
and  other  instruments.  (Sec.  6.) 

Where  the  buildings  or  improvements  are  not  con- 
tiguous, a  joint  claim  for  a  lien  on  both  cannot  be  filed  ; 
and  where  they  are  contiguous  and  owned  by  the  same 
person,  the  joint  claim  shall  designate  the  amount  due 
the  claimant  on  each  of  such  buildings,  and  if  it  does 
not,  the  lien  claimed  shall  be  postponed,  to  other  lien 
holders.  (Sec.  7.)  A  form  for  such  claim  will  be  found 
in  the  appendix.  In  contiguous  or  adjoining  buildings 
the  lien  on  each  extends  only  to  the  amount  of  the 
claim  on  each  building  respectively. 

No  lien  shall  continue  for  a  longer  period  than  nine- 
ty days  from  the  time  of  filing,  unless  a  suit  to  enforce 
it  is  brought  in  a  proper  Court  within  that  time,  or  if 
a  credit  has  been  given  no  longer  than  ninety  days 
after  the  expiration  of  the  credit.  But  no  lien  is  to 
be  in  force,  by  any  agreement  to  give  credit,  for  more 
than  two  years  from  the  time  the  work  is  completed. 
(Section  8.) 

We  have  already  spoken  of  the  right  to  a  lien  that 


TREATISE — MECHANICS'  LIEN  LAW.  27 

a  person  acquires  on  a  city  or  town  lot,  for  grading, 
filling  in  and  improving  it.  (Sec.  9.)  The  form  for  such 
a  claim  will  be  found  in  the  appendix. 

The  10th  section  of  the  Act  provides  for  the  bring, 
ing  of  actions  to  enforce  liens  under  the  Act.  To  en- 
force liens  on  real  estate,  the  suit  has  to  be  commenced 
in  a  District  Court,  however  small  the  sum  may  be. 
We  give  in  the  appendix  the  form  of  a  complaint  in 
the  most  ordinary  case — that  of  the  erection  of  a 
house ;  and  we  also  give  some  other  forms  of  com- 
plaints, but  they,  of  course,  will  have  to  be  adapted  to 
the  peculiar  circumstances  of  the  case  for  which  a  suit 
may  be  sought  to  be  instituted.  In  all  such  actions,  it 
is  necessary  to  make  all  persons  who  are  personally 
liable,  and  all  lien  holders  whose  claims  have  been 
filed  in  the  Recorder's  Office,  and  all  other  persons 
interested  in  the  matter  in  controversy,  or  in  the  pro- 
perty to  be  charged  with  the  lien  parties  to  the  action, 
otherwise  they  will  not  be  bound  by  the  proceedings. 
(See  sub.  5th  of  sec.  10.) 

In  this  respect  the  Act  is  different  from  the  old  Act, 
which  provided  for  the  publication  of  notice  to  all 
having  an  interest  to  appear  and  present  their  claims. 
Now  they  must  be  made  parties  to  the  action  in  the 
first  instance,  and  regularly  served  with  process.  It  will 
be  necessary,  therefore,  for  the  claimant,  before  commen- 
cing his  action,  to  have  a  thorough  search  made  of  the 
title  in  the  Recorder's  office,  and  also  to  see  who  is  in 
the  actual  possession  of  the  premises ;  for  possession, 
under  a  title  not  appearing  on  the  record,  has  been 
adjudged  to  give  as  sufficient  notice  to  subsequent 
purchasers  and  incumbrancers  as  under  our  registry 


28  TREATISE MECHANICS1    LIEN"    LAW. 

acts,  a  recorded  deed  does.  Lo/nders  v.  Bolton,  ^6  Cal., 
394.  In  short,  every  one  should  be  made  a  party  who, 
either  by  the  record  or  by  possession,  appears  to  have 
any  interest  in  the  premises.  As  to  one  class  of  per- 
sons being  made  parties,  the  statute  is  imperative. 
Persons,  it  says,  who  are  personally  liable,  and  all 
lien-holders  whose  claims  have  been  filed  for  record 
under  the  5th  section  of  the  Act,  shall  be  made  parties, 
and  as  to  other  parties  interested  in  the  controversy, 
it  says  they  may  be  made  parties. 

Where,  by  reason  of  the  absence  of  a  party  defen- 
dant from  the  State,  or  of  his  residence  out  of  the 
State,  "  or  for  any  other  cause,  he  cannot  be  served 
personally,"  and  where,  by  the  Practice  Act,  service  of 
a  summons  may  be  made  by  publication,  service  can 
in  cases  under  this  Act  be  made  by  publication,  but 
instead  of  once  a  week  for  three  months,  as  in  the 
Practice  Act,  the  publication  is  to  be  once  a  week  for 
four  successive  weeks.  By  the  Practice  Act,  the  service 
is  complete  only  at  the  end  of  the  publication  with  the 
same  e^ect  as  if  the  summons  had  been  served  that 
day,  and  then  the  time  to  answer  commences  to  run ; 
but  this  section  of  the  Act  provides  that  the  time  for 
answering  shall  expire  when  such  publication  is  com- 
plete; and  if  no  answer  of  such  defendant  is  then 
filed  his  default  may  be  entered ;  so  that  the  time  of 
service,  four  weeks,  or  twenty-eight  day^s,  is  shorter  in 
such  a  case  than  in  a  case  where  a  defendant  resides 
out  of  the  district,  but  in  the  State,  for  in  that  case, 
the  time  required  for  his  appearance  is  forty  days. 
(3  sub.  of  sec.  25  of  Practice  Act.) 

It  will  be  observed  that  the  Act  speaks  of  a  case 


TEEATISE — MECHANICS'  LIEN  LAW. 

where,  by  the  Practice  Act,  service  may  be  made  by 
publication.  Now,  where  the  residence  of  the  party 
residing  out  of  the  State  is  known,  by  the  Practice 
Act,  service  cannot  be  made  by  publication  alone,  but 
must  also  be  made  by  mail.  (Sec.  31  of  Practice  Act.) 

In  such  cases,  under  this  Act,  service  by  mail  should 
also  be  made.  The  Act,  however,  provides  that  the 
Court  may  in  its  discretion,  in  all  cases,  instead  of 
ordering  publication,  or  after  publication,  appoint  an 
attorney  to  appear  for  the  non-resident,  absent  or  con- 
cealed defendant,  and  conduct  the  proceedings  on  his 
part.  Perhaps  it  would  be  better,  even  after  publica- 
tion, in  every  case,  to  have  such  attorney  appointed.  In 
case  of  non-resident,  absent  or  concealed  defendants, 
the  affidavits  should  be  full  and  the  statute  in  every 
respect  strictly  complied  with.  Forms  are  given  in 
the  appendix. 

The  Act  provides  that  all  suits  to  enforce  a  lien  un- 
der this  Act  shall  have  a  preference  on  the  calendar 
of  the  Court  over  any  civil  suit,  except  suits  to  which 
the  State  is  a  party,  and  are  to  be  tried  by  the  Court 
without  unnecessary  delay.  (4  sub.  of  sec.  10.) 

It  also  provides  (sub.  3  of  sec.  10)  that  the  Court 
shall,  upon  entering  judgment  for  the  plaintiff,  allow 
as  a  part  of  the  costs,  all  moneys  paid  for  the  filing 
and  recording  of  the  lien,  and  also  a  reasonable  amount 
as  attorney's  fees.  This  is  new,  and  will,  it  is  pre- 
sumed, embrace  all  reasonable  charges  of  the  attorney 
in  preparing  the  lien  papers  and  conducting  the  cause, 
so  that  the  party  prosecuting  his  demand  in  this  form 
will  receive  it  without  any  deduction  for  his  attorney 
and  counsel  fees,  unless,  indeed,  the  proceeds  of  the 


30  TREATISE MECHANICS7   LIEN  LAW 

sale  should  be  insufficient  to  pay  sucli  fees.  The  fees 
to  be  paid  to  the  attorney  who  may  be  employed  by 
the  Court  to  appear  for  absent  defendants  or  protect 
their  interests,  will  also,  of  course,  be  allowed  and  de- 
ducted. These  amounts  should  be  proved  on  the  trial 
and  inserted  in  the  judgment,  or  an  order  made  by  the 
Court,  on  proper  evidence,  before  the  judgment  is  en- 
tered. Forms  are  given  in  the  appendix. 

There  is  another  point  in  the  decree,  which  is  very 
important.  It  will  be  observed  that  by  the  2d  section  of 
the  Act,  the  lien  is  to  be  upon  the  land  upon  which 
any  building  or  other  improvement  shall  be  construct- 
ed, together  with  a  convenient  space  about  the  same, 
or  so  much  as  may  be  required  for  the  convenient  use 
and  occupation  thereof.  This  is  precisely  the  same 
language  as  the  4th  section  of  the  Act  of  1856,  as 
amended,  and  under  that  Act  the  Supreme  Court,  in 
the  case  of  TMits  v.  Moore,  23  Cal.  213,  decided  that, 
"  in  cases  of  this  kind,  it  is  proper  for  the  Court,  by  its 
"  decree,  to  define  the  amount  and  extent  of  the  land 
"  connected  with  the  building,  which  is  properly  sub- 
ject to  the  lien.  Such  an  omission  will  not  invalidate 
"  the  decree,  but  renders  it  doubtful  whether  a  pur- 
"  chaser  under  it  will  acquire  any  land  beyond  that 
"  covered  by  the  building."  The  form  of  the  decree  in 
the  appendix  gives  the  author's  idea  of  how  a  decree 
should  be  framed  in  that  fespect. 

After  the  property  has  been  sold  on  the  decree,  and 
the  money  realized,  the  Act  provides  (sub.  2  of  sec.  10) 
how  the  proceeds  shall  be  divided.  If  the  money  re- 
alized shall  be  insufficient  to  pay  all  the  lien-holders, 
it  is  to  be  applied  as  follows : 


TEEATISE — MECHANICS'  LIEN  LAW.  31 

First — To  pay  the  liens  of  .all  persons  other  than 
the  original  contractor  or  sub-contractor.  This  class, 
of  course,  embraces  mechanics,  lumber  merchants,  and 
persons  performing  labor  or  furnishing  materials ;  and 
if  the  sum  is  insufficient  to  pay  them  all,  then  they  are 
to  be  paid  pro  rata.  If  sufficient  to  pay  them  all,  then 
out  of  the  remainder,  if  any,  to  pay, 

Second — The  sub-contractors,  and  if  insufficient,  to 
pay  them  in  full,  then  they  are  to  be  paid  pro  rata. 
The  remainder,  if  any,  is  to  be  paid, 

Third — To  the  original  contractor. 

Such  is  the  language  of  the  statute ;  but  we  suppose 
it  means  that  so  much  of  the  remainder  as  will  satisfy 
the  original  contractor's  demand,  as  settled  by  the  de- 
cree, shall  be  paid  to  him,  and  the  balance  to  the 
owner  of  the  land,  or  to  be  paid  by  the  Sheriff  into 
Court  for  the  behoof  of  those  entitled  to  it  in  the  same 
manner  as  under  sec.  247  of  the  Practice  Act,  in  refer- 
ence to  the  foreclosure  of  mortgages.  The  rights  of 
each  party  should  be  distinctly  defined  by  the  decree, 
for  the  second  subdivision  of  section  10,  provides  that, 
in  case  of  a  deficiency,  each  claimant  shall  be  entitled  to 
execution  for  any  balance  due  him  after  such  distribu- 
tion, and  such  execution  is  to  be  issued  by  the  clerk  of 
the  Court  on  demand,  after  the  return  of  the  Sheriff, 
showing  the  balance  due.  We  have  given  in  the 
appendix  forms  of  the  decree  and  of  the  execution,  as 
well  for  the  sale  as  for  the  balance  in  favor  of  a  claim- 
ant with  the  return  of  Sheriff,  on  which  it  is  founded. 

It  will  be  observed  that  the  liens  commence  to  run 
from  the  time  the  work  and  labor  is  commenced,  or 
the  materials  begun  to  be  furnished.  This  is  substanti- 


32  TEEATISE — MECHANICS'  LIEN  LAW. 

ally  the  meaning  of  the  third  section,  and  under  the 
old  Act,  the  Supreme  Court  decided  in  the  case  of 
TMitts  v.  Moore,  23  Cal.  R.,  already  referred  to, 
that  "  the  lien  of  a  material  man  accrues  at  the  time 
he  has  the  materials,  which  he  has  contracted  to  fur- 
nish, ready  for  delivery  at  the  place  where  he  has 
agreed  to  deliver  them ;"  and  in  McCrea  v.  Craig,  23 
Cal.  522,  it  was  decided  that  "the  lien  given  by  the 
statute  to  the  mechanic  or  material  man,  for  work  and 
labor  performed  or  materials  furnished  in  the  construc- 
tion of  a  building,  commences  and  attaches  to  the  pro- 
perty at  the  time  of  the  commencement  of  the  work 
or  the  beginning  to  furnish  the  materials."  It  is  im- 
portant, therefore,  for  a  person  lending  money  on  pro- 
perty, to  see  that  the  lien  has  not  commenced,  though 
no  claim  may  be  filed  in  the  Recorder's  office. 

The  distribution  of  the  proceeds  of  a  sale,  under  the 
2d  subdivision  of  the  10th  section,  may  be  materially 
changed  by  the  creation  of  a  mortgage  after  one  lien  has 
attached,  but  before  another  lien  has  taken  effect.  In 
that  event,  the  proceeds,  after  the  first  lien-holder  is 
paid,  would  have  first  to  be  applied  on  the  mortgage 
before  being  applied  on  the  lien  second  in  point  of 
time.  In  the  distribution,  mortgages,  prior  to  the 
liens,  must,  of  course,  be  first  paid,  but  if  the  lien  is 
for  an  alteration  or  repair,  the  lien  in  such  case  is  prior 
to  all  mortgages,  if  the  construction  the  author  has 
given  to  the  3d  section  of  the  Act  is  correct. 

The  llth  section  of  the  Act  provides  that  a  con 
tractor  who  files  a  lien  shall  be  entitled  to  recover  only 
such  amount  as  may  be  due  to  him  according  to  the 
terms  of  his  contract,  after  deducting  all  claims  of  other 


TEEATISE — MECHANICS'   LIEN    LAW.  33 

parties  for  work   done  or   materials  furnished.     The 
claims  here  referred  to,  it  is  presumed,  are  claims  which 
have  become,  or  may  become,  liens,  for  the  owner  can 
have  no  interest  in   compelling  the   contractor  to  pay 
claims  which  have  not  been  made  or  cannot  be  made 
a  lien  on  the  owner's  property.     The  Act  further  pro- 
vides that,  where  a  lien  is  filed  for  work  done  or  mate- 
rials furnished  to  any  contractor,  he  is  bound  to  defend 
any  action  brought  to  foreclose  it  at  his  own  expense 
and  during  the  pendency  of  the  suit,  the  owner  may 
withhold  from  the  contractor  the  amount  of  money  for 
which   the  lien  is  filed;  and   in   case  of  a  judgment 
against   the  owner  or  his  property  for  the  lien,  the 
owner  shall  be  entitled  to  deduct  from  any  amount  due 
or  to  become  due  to  the  contractor  the  amount  of  the 
judgment  and   costs.      If  the  judgment   exceeds  the 
amount  due  the  contractor,  or  the  owner  has  before 
paid  the   contractor   in  full,   he  is  entitled  to  recover 
back  from  the   contractor  any  excess  of  the   contract 
price.     When  an  action  is  brought  by  any  other  than 
the  contractor,  the   owner  should  give  the  contractor 
notice,  and  call  on  him  to  defend  the  action.     If  the 
contractor  is  a  party  to  the  action,  the  judgment  against 
the  contractor  for  the  excess  may  be  obtained  in  that 
suit.     If  not,  the  owner  will  have  to  bring  a  separate 
action  against  him  for  the  excess.     We  have  given  in 
the  appendix  forms  of  the  notice  and  of  the  final  de- 
cree where  the  contractor  is  a  party,  and  also  of  the 
complaint  where  he  is  not. 

By  section  12,  it  is  enacted  that  all  materials  fur- 
nished or  procured  by  any  mechanic,  artisan,  machinist, 
builder,  lumber  merchant,  contractor,  laborer,  or  other 


34  TREATISE — MECHANICS'  LIEN  LAW. 

person,  for  use  in  the  construction,  alteration  or  repair 
of  any  building,  shall  not  be  subject  to  attachment, 
execution,  or  other  legal  process,  to  enforce  any  debt 
due  by  the  purchaser  of  such  materials,  except  a  debt 
due  for  the  purchase  money  of  the  materials,  so  long 
as  in  good  faith  the  articles  are  about  to  be  applied  to 
the  construction,  alteration,  repair,  etc.,  of  the  building. 

This  section  is  somewhat  vagne,  arising  from  the  use 
of  the  indefinite  word  "  about."  A  mechanic  may 
have  manufactured,  or  be  manufacturing,  doors  and 
windows  for  a  building,  intending,  in  good  faith,  that 
they  should  be  applied  to  the  construction  of  a  build 
ing,  and  yet  they  may  be  miles  away  from  the  build 
ing  to  be  constructed  ;  but  whether  they  would  be 
adjudged  to  be  "  about,"  to  be  applied  to  the  construc- 
tion of  the  building,  under  this  Act,  till  they  were  re- 
moved to  the  ground,  or  in  process  of  removal,  will  be 
a  question  to  be  decided  by  the  peculiar  facts  of  each 
case, 

By  section  13,  a  party  who  has  a  lien  is  not  preclu- 
ded from  suing  the  person  who  is  personally  liable  to 
him,  in  a  personal  action,  and  may  take  out  an  attach- 
ment therefor,  notwithstanding  his  lien ;  and  in  his 
affidavit  for  an  attachment,  he  need  not  state  that  his 
demand  is  not  secured  by  a  lien.  In  this  respect,  so 
far  as  such  an  action  is  concerned,  it  modifies  the  first 
subdivision  of  section  120  of  the  Practice  Act.  It  is 
further  declared,  that  the  personal  action  neither  im- 
pairs nor  merges  any  lien  held  by  the  plaintiff  un- 
der the  Act,  but  it  provides  that^any  money  collected 
on  the  judgment,  in  the  personal  action,  shall  be 
credited  on  the  amount  claimed  under  such  lien  in  any 
action  brought  to  enforce  the  lien. 


TREATISE — MECHANICS'  LIEN  LAW.  35 

The  fifteenth  section  of  the  Act  provides  for  the  lien 
of  mechanics,  artisans  or  laborers,  for  the  making, 
altering  or  repairing  any  article  of  personal  property, 
where  such  making,  altering  or  repairing  is  done  at 
the  request  of  the  owner  or  legal  possessor,  and  pro- 
vides that  he  may  retain  the  same  in  his  possession  till 
his  reasonable  charges  are  paid.  This  is  substantially 
the  Common  Law  on  the  subject.  It  does  not  provide 
that  the  lien  shall  remain  after  he  has  parted  with  the 
article.  When  he  parts  with  it,  therefore,  the  lien  ends 
as  it  does  at  Common  Law.  The  lien,  too,  by  the  Com- 
mon Law,  belongs  only  to  the  person  contracting  to  do 
the  work,  and  does  not  extend  to  persons  employed 
under  him.  (HoUingsworth  v.  Dow,  19  Pick.  R.  228.) 
This  section  does  not  change  the  Common  Law  in  those 
respects,  but  it  points  out  the  mode  and  manner  of 
making  this  lien  effectual.  The  mode  of  realizing  the 
amount  due  under  such  a  lien  was  not  provided  by 
Common  Law;  at  least  the  question  was  attended  with 
considerable  doubt  and  difficulty.  Chancellor  Kent 
says  (2  KenCs  Com.  823)  that  the  right  to  sell  is  not 
allowed  by  general  custom,  but  he  presumes  that  satis- 
faction may  be  enforced  by  bill  in  chancery.  This 
Act,  however,  provides  how  the  lien  shall  be  enforced, 
but  to  make  the  proceeding  an  effectual  protection  to 
the  lien-holder,  the  statute  must  be  strictly  complied 
with.  The  mechanic,  or  other  person,  must  wait  for 
two  months  after  the  work  is  done  before  he  can  take 
measures  to  sell.  He  is  then  authorized  to  sell  the 
property,  at  public  auction,  by  giving  ten  days  public 
notice  of  such  sale,  in  some  newspaper  published  in  the 
county  in  which  the  work  was  done.  If  no  newspaper 


36  TREATISE — MECHANICS'  LIEN  LAW. 

is  published  in  the  county,  then  by  posting  notices  in 
three  most  public  places  in  the  "town"  where  such  work 
was  done,  ten  days  previous  to  the  sale.  Nothing  is 
said  about  the  number  of  times  the  notice  is  to  be  in- 
serted, but  to  make  certain,  it  should  be  inserted  as 
often  as  the  paper  is  published  till  the  day  of  sale,  un- 
less it  is  a  daily  paper,  when  probably  an  insertion 
once  a  week  would  be  sufficient.  A  form  for  the  notice 
is  given  in  the  appendix.  The  proceeds  of  the  sale  are 
to  be  applied  to  the  discharge  of  the  lien,  and  the  cost 
of  keeping  and  selling  the  property ;  and  the  remain- 
der, if  any,  is  to  be  paid  over  to  the  owner. 

The  17th  section  of  the  Act  repeals  all  previous  acts 
in  reference  to  mechanics'  liens;  but  by  the  16th  sec- 
tion, nothing  in  the  Act  is  to  effect  any  lien  acquired 
before  the  Act  took  effect ;  but  such  lien  is  to  be  en- 
forced under  the  new  Act.  In  suits  pending  when  the 
Act  took  effect,  the  proceedings  afterward  thereon 
may  be  conducted  according  to  the  new  Act.  The 
Supreme  Court  so  held  in  McCrea  v.  Craig,  before  re- 
ferred to,  without  any  legislative  provision  to  that 
effect. 

The  Act  was  approved  30th  March,  1868,  and  took 
effect  sixty  days  from  that  date,  so  that  it  went  into 
effect  on  the  30th  of  May,  1868. 

Such  is  the  law  to  secure  the  liens  of  laborers  and 
mechanics  in  this  State  as  it  now  stands.  The  neces- 
sity and  the  justice  of  lien  lawsVhave  been  recognized 
by  almost  every  State  in  the  Union,  and  legislation  has 
been  successfully  invoked  and  obtained  in  establishing 
and  enforcing  them.  While,  however,  it  is  just  that 


TREATISE — MECHANICS'  LIEN  LAW.  37 

the  wages  of  honest  labor  should  be  thus  protected 
and  the  claims  of  the  mechanic  and  artisan  should  be 
secured  by  lien,  and  for  the  very  sufficient  reasons  given 
by  Judges  Burnett  and  Crocker  that  their  labors  create 
in  part  the  very  property  on  which  the  lien  is  sought, 
yet  the  law  should  be  so  framed  as  that,  while  on  the 
one  hand  the  rights  of  the  claimants  should  be  fully 
protected,  on  the  other  hand  no  injustice  should  thereby 
be  done  to  the  owners  of  the  property  who  have  con- 
tracted for  the  erection  of  the  superstructure  or 
improvement.  It  cannot  be  said  of  this  Act,  although 
it  contains  many  highly  beneficial  and  judicious  pro- 
visions, that  it  has  fully  accomplished  either  of  those  pur- 
poses. By  proper  legislative  amendments  to  the  Act, 
however,  the  rights  of  all  may  be  easily  and  fully 
secured  and  injury  done  neither  to  the  one  class  nor 
the  other.  As  the  law  stands  it  is  a  serious  check  in 
the  progress  of  local  improvements,  in  the  way  of 
which,  and  to  the  investment  of  capital  in  that  direction, 
it  throws  many  discouragements  and  impediments. 
There  is  another  evil  likely  to  be  produced  by  it,  and 
that  is,  its  tendency  to  build  up  a  kind  of  mechanical 
aristocracy.  Few  owners  of  real  estate,  as  the  law  now 
is,  will  engage  in  erecting  superstructures  without 
taking  from  the  master  mechanic,  before  the  com- 
mencement of  the  work,  ample  security  against  all  and 
any  liens  that  under  this  Act  may  be  created  on  the 
owner's  property.  The  result  of  this  will  very  likely 
be  to  confine  and  restrict  the  business  of  Building  by 
contract  to  the  wealthy  master  mechanics,  who,  besides 
their  undoubted  personal  responsibility,  are  capable  of 
giving  abundant  security  to  perform  any  contract  they 


38  TEEATISE — MECHANICS'  LIEN  LAW. 

may  enter  into,  which  the  less  wealthy  class  may 
experience  much  difficulty  in  doing.  Thus  the  young 
and  aspiring  though  comparatively  poor  mechanic  will 
find  obstacles  thrown  in  the  way  of  his  advancement 
which  did  not  before  exist,  competition  will  be  lessened, 
the  class  of  dependent  journeymen  and  laborers 
increased,  and  the  class  of  master  mechanics  diminished* 
The  object  of  this  Treatise  is  to  enable  all  parties 
affected  by  the  law,  as  it  now  stands,  to  take  such 
measures  legally  as  may  protect  their  just  rights.  If  a 
subsequent  edition  is  issued  before  the  meeting  of  the 
next  Legislature,  the  author  will  take  the  liberty  of 
submitting  the  draft  of  a  law  which,  in  his  opinion, 
will  as  far  as  practicable  secure  the  rights  of  the 
laborer  and  mechanic  without  injuring  the  rights  or 
interests  of  the  owners  of  property. 


THE    ACT 

COMMONLY  CALLED  THE  MECHANICS'  LIEN  LAW, 

PASSED   BY  THE   LEGISLATURE    OF  THE   STATE   OF   CALIFOR- 
NIA,   AT   ITS    SEVENTEENTH   SESSION,    1867-8,    AND 
NUMBERED   CHAPTER    CCCCXLVHI   OF  THE 
ACTS    OF    THAT    SESSION. 


An  Act  for  Securing  Liens  of  Mechanics  and  others, 

[APPROVED  MARCH  30,  1868.] 

The  People  of  the  State  of  California,  represented  in  Senate  and 
Assembly,  do  enact  as  follows : 

SECTION  1.  Every  mechanic,  artisan,  machinist,  builder, 
contractor,  lumber  merchant,  miner,  laborer,  and  other 
person  performing  labor  upon  or  furnishing  materials  of 
any  kind  to  be  used  in  the  construction,  alteration,  or  repair, 
either  in  whole  or  in  part,  of  any  mining  claim,  building, 
wharf,  bridge,  ditch,  flume,  tunnel,  fence,  machinery,  rail- 
road, wagon  road,  aqueduct  to  create  hydraulic  power  for 
mining  or  other  purposes,  or  any  other  structure  or  super- 
structure, or  who  shall  perform  labor  in  any  mining  claim, 
shall  have  a  lien  upon  the  same  for  the  work  or  labor  done 
or  materials  furnished  by  each  respectively,  whether  done 


40  THE    ACT. 

or  furnished  at  the  instance  of  the  owner  of  the  building  or 
other  improvement,  or  his  agent ;  and  every  contractor,  sub- 
contractor, architect,  builder,  or  other  person  having  charge 
of  any  mining,  or  of  the  construction,  alteration  or  repair, 
either  in  whole  or  in  part,  of  any  building  or  other  improve- 
ment as  aforesaid,  shall  be  held  to  be  the  agent  of  the 
owner  for  the  purposes  of  this  Act. 

SEC.  2.  The  land  upon  which  any  building  or  other  im- 
provement as  aforesaid  shall  be  constructed,  together  with 
a  convenient  space  about  the  same,  or  so  much  as  may  be 
required  for  the  convenient  use  and  occupation  thereof,  shall 
also  be  subject  to  the  liens  created  by  this  Act,  if,  at  the 
time  the  work  was  commenced  or  the  materials  for  the 
same  had  commenced  to  be  furnished,  the  said  land  be- 
longed to  the  person  who  caused  said  building  or  other  im- 
provement to  be  constructed,  altered,  or  repaired ;  but  if 
such  person  owned  less  than  a  fee  simple  estate  in  such  land, 
then  only  his  interest  therein  shall  be  subject  to  such  lien; 
and  in  case  such  interest  shall  be  a  leasehold  interest,  and 
the  holder  thereof  shall  have  forfeited  his  right  thereto,  the 
purchaser  of  such  building  or  improvement  and  leasehold 
term,  or  so  much  thereof  as  remains  un expired  at  any  sale 
under  the  provisions  of  this  Act,  shall  be  held  to  be  the 
assignee  of  such  leasehold  term,  and  as  such  shall  be  entitled 
to  pay  the  lessor  all  arrears  of  rent  or  other  money  and 
cost  due  under  said  lease,  unless  the  lessor  shall  have  re- 
gained possession  of  the  said  land  and  property,  or  obtained 
judgment  for  the  possession  thereof  prior  to  the  commence- 
ment of  the  construction,  alteration,  or  repair  of  the  build- 
ing or  other  improvement  thereon ;  in  which  event,  said 
purchaser  shall  have  the  right  only  to  remove  the  building 
or  other  improvement  within  thirty  days  after  he  shall  have 
purchased  the  same ;  and  the  owner  of  the  land  shall  re- 
ceive the  rent  due  him,  payable  out  of  the  proceeds  of  the 
sale,  according  to  the  terms  of  the  lease,  down  to  the  time 
of  such  removal. 


THE   ACT.  41 

SEC.  3.  All  liens  created  by  this  Act  upon  any  land  or 
mining  claim,  shall  be  preferred  to  any  lien,  mortgage,  or 
other  incumbrance  which  may  have  attached  to  said  land 
or  mining  claim,  subsequent  to  the  time  when  the  building 
or  other  improvement  was  commenced,  or  the  materials 
were  begun  to  be  furnished ;  also,  to  any  lien,  mortgage,  or 
other  incumbrance  which  was  unrecorded  at  the  time  when 
said  building  or  other  improvement  was  commenced,  or  the 
materials  for  the  same  were  commenced  to  be  furnished  ; 
and  all  liens  created  by  this  Act  upon  any  building  or  other 
improvement,  shall  be  preferred  to  all  prior  liens,  mortga- 
ges, or  other  incumbrances  upon  the  land  upon  which  said 
building  or  other  improvement  shall  have  been  constructed, 
or  situated  when  altered  or  repaired ;  and  in  enforcing  such 
lien,  such  building  or  other  improvement  may  be  sold 
separately  from  said  land ;  and  when  so  sold,  the  purchaser 
may  remove  the  same  within  a  reasonable  time  thereafter, 
not  to  exceed  thirty  days,  upon  the  payment  to  the  owner 
of  the  land  of  a  reasonable  rent  for  its  use  from  the  date  of 
his  purchase  to  the  time  of  removal ;  provided,  that  if  such 
removal  be  prevented  by  legal  proceedings,  said  thirty  days 
shall  riot  begin  to  run  until  the  final  determination  of  such 
proceedings  in  the  Court  of  first  resort,  or  in  the  appellate 
Court,  if  appeal  be  taken. 

SEC.  4.  Every  building  or  other  improvement  mentioned 
in  the  first  section  of  this  Act,  constructed  upon  any  lands 
with  the  knowledge  of  the  owner,  or  the  person  having  or 
claiming  any  interest  therein,  shall  be  held  to  have  been 
constructed  at  the  instance  of  such  owner  or  person  having 
or  claiming  any  interest  therein,  and  the  interest  owned  or 
claimed  shall  be  subject  to  any  lien  filed  in  accordance  with 
the  provisions  of  this  Act,  unless  such  owner  or  person 
having  or  claiming  an  interest  therein,  shall,  within  three 
days  after  he  shall  have  obtained  knowledge  of  the  con- 
struction, alteration  or  repair,  or  the  intended  construction, 
alteration,  or  repair,  givo  notice  that  he  will  not  be  responsi- 


I 

42  THE   ACT. 

ble  for  the  same,  by  posting  a  notice  iu  writing  to  that 
effect,  in  som.e  conspicuous  place  upon  said  land,  or  upon 
the  building  or  other  improvement  situated  thereon. 

SEC.  5.  It  shall  be  the  duty  of  every  original  contractor, 
within  sixty  days  after  the  completion  of  his  contract,  and 
of  every  mechanic,  artisan,  machinist,  builder,  lumber 
merchant,  miner,  laborer,  or  other  person,  save  the  original 
contractor,  claiming  the  benefit  of  this  Act,  within  thirty 
days  after  the  completion  of  any  building,  mining  claim, 
or  other  improvement,  or  the  performance  of  any  labor  in 
any  mining  claim,  or  after  the  completion  of  the  alteration 
or  repair  thereof,  to  file  with  the  County  Recorder  of  the 
county  in  which  such  building  or  other  improvement,  or 
some  part  thereof,  shall  be  situated,  a  claim  containing  a 
true  statement  of  his  demand,  after  deducting  all  just 
credits  and  effects,  with  the  name  of  the  owner  or  reputed 
owner,  if  known,  and  also  the  name  of  the  person  by  whom 
he  was  employed,  or  to  whom  he  furnished  the  materials, 
and  also  a  description  of  the  property  to  be  charged  with 
said  lien,  sufficient  for  identification,  which  claim  shall  be 
verified  by  the  oath  of  himself,  or  of  some  other  person. 

SBC.  6.  The  County  Recorder  shall  record  said  claim  in  a 
book  kept  by  him  for  that  purpose,  which  record  shall  be 
indexed  as  deeds  and  other  conveyances  are  required  by 
law  to  be  indexed,  and  for  which  he  shall  receive  the  same 
fees  as  are  allowed  by  law  for  recording  deeds  and  other 
instruments. 

SEC.  7.  In  every  case  in  which  one  claim  shall  be  filed, 
under  the  provisions  of  this  Act,  against  two  or  more  build- 
ings, mining  claims  or  other  improvements,  owned  by  the 
same  person,  the  person  filing  such  joint  claim  shall  at  the 
same  time  designate  the  amount  due  to  him  on  each  of 
such  buildings,  mining  claims,  or  other  improvements ; 
otherwise,  such  claim  shall  be  postponed  to  other  lien-hold- 
ers, and  the  lien  of  such  claimant  shall  not  extend  beyond 
the  amount  so  designated,  as  against  other  creditors  having 


THE   ACT.  43 

liens  by  judgment,  mortgage  or  otherwise,  upon  either  of 
such  buildings  or  other  improvements,  or  upon  the  land 
upon  which  the  same  are  situated ;  provided,  that  no  joint 
claim  shall  be  filed  upon  two  or  more  buildings,  unless  they 
are  contiguous  to  or  adjoining  each  other. 

SEC.  8.  No  lien  provided  for  in  this  Act  shall  bind  any 
building,  mining  claim,  or  other  improvement  for  a  longer 
period  than  ninety  days  after  the  same  shall  have  been  filed, 
unless  suit  be  brought  in  a  proper  Court  within  that  time 
to  enforce  the  same;  or,  if  a  credit  be  given,  then  ninety 
days  after  the  expiration  of  such  credit.  But  no  lien  shall 
be  continued  in  force  for  a  longer  time  than  two  years  from 
the  time  the  work  is  completed  by  any  agreement  to  give 
credit. 

SEC.  9.  Any  person  who  shall  at  the  request  of  the  owner 
of  any  lot  in  any  incorporate  city  or  town,  grade,  fill  in,  or 
otherwise  improve  the  same,  or  the  street  in  frcnt  of  or 
adjoining  the  same,  shall  have  a  lien  upon  such  lot  for  his 
work  done  and  materials  furnished  in  grading,  filling  in,  or 
otherwise  improving  the  same;  and  all  the  provisions  ot 
this  Act  respecting  the  securing  and  enforcing  of  mechan- 
ics' liens  shall  apply  thereto. 

SEC.  10.  First — Suits  to  enforce  the  liens  created  oy  this 
Act,  except  those  under  section  fifteen,  shall  be  brought  in 
the  District  Courts;  and  the  pleadings, process, practice  and 
other  proceedings,  shall  be  the  same  as  in  other  cases ;  pro- 
vided, that  where  service  of  summons  may  be  made  under 
the  Practice  Act  by  publication,  the  time  of  publication, 
where  the  defendant  resides  out  of,  or  is  absent  from,  the 
State,  or  for  any  other  cause,  cannot  be  served  personally, 
and  [need]  be  but  once  a  week  for  four  successive  weeks,  and 
the  time  for  answering  shall  expire  when  such  publication  is 
complete,  and  if  no  answer  of  such  defendant  is  then  filed, 
his  default  may  be  entered ;  and,  provided,  also,  that  the 
Court  may  in  its  discretion,  in  all  cases  under  this  Act, 
instead  of  ordering  publication,  or  may  after  publication, 


44  THE   ACT. 

appoint  an  attorney  to  appear  for  the  non-resident,  absent, 
or  concealed  defendant,  and  conduct  the  proceedings  on 
his  part. 

Second — In  case  the  proceeds  of  any  sale  under  this  Act 
shall  he  insufficient  to  pay  all  lien-holders  under  it,  the  liens 
of  all  persons  other  than  the  original  contractor  and 
sub-contractors  shall  first  be  paid  in  full,  or^>ro  rata,  if  the 
proceeds  be  insufficient  to  pay  them  in  full ;  and  out  of  the 
remainder,  if  any,  the  sub-contractors  shall  then  be  paid  in 
full,  or  pro  raid  if  the  remainder  be  insufficient  to  pay  them 
in  full;  and  the  remainder,  if  an\,  shall  be  paid  to  the 
original  contracter ;  and  each  claimant  shall  be  entitled  to 
execution  for  any  balance  due  him  after  such  distribution, 
such  execution  to  be  issued  by  the  Clerk  of  the  Court  upon 
demand,  after  the  return  of  the  Sheriff  or  other  officer 
making  the  sale  showing  such  balance  due. 

Third — In  all  suits  under  this  Act  the  Court  shall,  upon 
entering  judgment  for  the  plaintiff,  allow  as  a  part  of  the 
costs  all  moneys  paid  for  the  filing  and  recording  of  the 
lien,  and  also  a  reasonable  amount  as  attorneys'  fees. 

Fourth — All  suits  to  enforce  any  lien  created  by  this  Act 
shall  have  preference  upon  the  calendar  of  the  Court  over 
any  civil  suit  already  brought  or  to  be  brought,  except  suits 
to  which  the  State  shall  be  a  party,  and  shall  be  tried  by 
such  Court  without  unnecessary  delay. 

Fifth — In  all  suits  to  enforce  any  lien  created  by  this 
Act,  all  persons  personally  liable,  and  all  lien-holders  whose 
claims  have  been  filed  for  record  under  the  provisions  of 
section  five  of  this  Act,  shall,  and  all  other  persons  in- 
terested in  the  matter  in  controversy,  or  in  the  property 
sought  to  be  charged  with  the  lien,  may  be  made  parties  ;  but 
such  as  are  not  made  parties  slxajl  not  be  bound  by  such 
proceedings. 

SEC.  11.  Any  contractor  shall  be  entitled  to  recover  upon 
a  lien  filed  by  him  only  such  amount  as  may  be  due  to  him 
according  to  the  terms  of  his  contract,  after  deducting  all 


THE   ACT.  45 

claims  of  other  parties  for  work  done  and  materials  fur- 
nished as  aforesaid ;  and  in  all  cases  where  a  lien  shall  be 
filed  under  this  Act  for  work  done  or  materials  furnished 
to  any  contractor,  he  shall  defend  any  action  brought  there- 
upon at  his  own  expense  ;  and  during  the  pendency  of  such 
action,  the  owner  may  withhold  from  the  contractor  the 
amount  of  money  for  which  such  lien  is  filed;  and  in  case 
of  judgment  against  the  owner  or  his  property,  upon  the 
lien,  the  said  owner  shall  be  entitled  to  deduct  from  any 
amount  due  or  to  become  due  by  him  to  the  contractor,  the 
amount  of  such  judgment  and  costs;  and  if  the  amount  of 
such  judgment  and  costs  shall  exceed  the  amount  due  by 
him  to  the  contractor,  or  if  the  owner  shall  have  settled 
with  the  contractor  in  full,  he  shall  be  entitled  to  recover 
back  from  the  contractor  any  amount  so  paid  by  him,  the 
said  owner,  in  excess  of  the  contract  price,  and  for  which 
the  contractor  was  originally  the  party  liable. 

SEC.  12.  Whenever  any  mechanic,  artisan,  machinist,  build- 
er, lumber  merchant,  contractor,  miner,  laborer,  or  other  per- 
son, shall  have  furnished  or  procured  any  materials  for  use 
in  the  construction,  alteration  or  repair  of  any  building  or 
other  improvement,  such  materials  shall  not  be  subject  to 
attachment,  execution  or  other  legal  process,  to  enforce  any 
debt  due  by  the  purchaser  of  such  materials,  except  a  debt 
due  for  the  purchase  money  thereof,  so  long  as  in  good  faith 
the  same  are  about  to  be  applied  to  the  construction,  altera- 
tion or  repair  of  such  building,  mining  claim,  or  other  im- 
provement. 

SEC.  13.  Nothing  contained  in  this  Act  shall  be  con- 
strued to  impair  or  affect  the  right  of  any  person  to  whom 
any  debt  may  be  due  for  work  done  or  materials  furnished, 
to  maintain  a  personal  action  to  recover  said  debt  against 
the  person  liable  therefor ;  and  the  person  bringing  such 
personal  action  may  take  out  an  attachment  therefor,  not- 
withstanding his  lien,  and  in  his  affidavit,  to  procure  an 
attachment,  need  not  state  that  his  demand  is  not  secured 


46  THE  ACT. 

by  a  lien,  but  the  judgment,  if  any,  obtained  by  the  plain- 
tiff in  such  personal  action,  shall  not  be  construed  to  im 
pair  or  merge  any  lien  held  by  said  plaintiff  under  this 
Act;  provided,  only,  that  any  money  collected  on  said  judg- 
ment shall  be  credited  on  the  amount  claimed  under  such 
lien  iii  any  action  brought  to  enforce  the  same,  in  accord- 
ance with  the  provisions  of  this  Act. 

SEC.  14.  The  words  "  building  or  other  improvement," 
whenever  the  same  are  used  in  this  Act,  shall  be  held  to 
include  and  apply  to  any  wharf,  bridge,  ditch,  flume,  tunnel, 
fence,  machinery,  railroad,  wagon  road,  aqueduct  to  create 
hydraulic  power,  or  for  mining  or  other  purposes,  and  all 
other  structures  and  superstructures,  whenever  the  same 
can  be  made  applicable  thereto :  and  the  words  "  con- 
struction, alteration  or  repair,"  whenever  the  same  are  used 
therein,  shall  be  held  to  include  partial  construction  and  all 
repairs  done  in  and  upon  any  building  or  other  improve- 
ment. 

SBC.  15.  Any  mechanic,  artisan,  or  laborer,  who  shall 
make,  alter,  or  repair  any  article  of  personal  property  at 
the  request  of  the  owner  or  legal  possessor  of  such  property, 
shall  have  a  lien  on  the  same  for  his  just  and  reasonable 
charges  for  work  done  and  materials  furnished,  and  may  re- 
tain possession  of  the  same  until  such  just  and  reasonable 
charges  shall  be  paid ;  and  if  not  paid  within  the  space  of 
two  months  after  the  work  shall  be  done,  such  mechanic  or 
other  person  may  proceed  to  sell  the  property  by  him  so 
made,  altered  or  repaired,  at  public  auction,  by  giving  ten 
days'  public  notice  of  such  sale  by  advertising  in  some  news- 
paper published  in  the  county  in  which  the  work  was  done; 
or  if  there  be  no  newspaper  published  in  such  county,  then 
by  posting  up  notices  of  such  sale  ifik  three  of  the  most  pub- 
lic places  in  the  town  where  such  work  was  done,  for  ten 
days  previous  to  such  sale,  and  the  proceeds  of  such  sale 
shall  be  applied  to  the  discharge  of  such  lien  and  the  cost 
of  keeping  and  selling  such  property,  and  the  remainder, 


THE  ACT,  47 

if  any,  shall  be  paid  over  to  the  owner  thereof. 

SEC.  16.  Nothing  contained  in  this  Act  shall  affect  any 
lien  heretofore  acquired,  but  the  same  may  be  enforced  by 
the  provisions  of  this  act,  and  where  suits  are  now  pending, 
the  proceedings  after  this  Act  goes  into  effect  may  be  con- 
ducted according  to  this  Act. 

SEC.  17.  An  Act  entitled  an  Act  for  securing  liens  of 
mechanics  and  others,  approved  April  27th,  1855 ;  an  Act 
entitled  an  Act  for  securing  liens  of  mechanics  and  others, 
approved  April  19th  1856 ;  an  Act  entitled  an  Act  in  addi- 
tion to  and  explanatory  of  an  Act  for  securing  liens  to 
mechanics  and  others,  approved  April  19,  1856,  approved 
March  4th,  1857 ;  an  Act  entitled  an  Act  supplementary  to 
an  Act  for  securing  liens  to  mechanics  and  others,  passed 
April  19th,  1856,  approved  March  18th,  1857;  an  Act  en- 
titled an  Act  to  amend  an  Act  for  securing  liens'to  mechan- 
ics and  others,  passed  April  19th,  1856,  approved  April 
22d,  1858 ;  an  Act  entitled  an  Act  to  amend  an  Act  enti- 
tled an  Act  for  securing  liens  of  mechanics  and  others, 
passed  April  19th,  1856,  approved  May  17th,  1861 ;  an  Act 
entitled  an  Act  in  relation  to  liens  of  mechanics  and  others, 
approved  April  26th,  1862,  are  hereby  repealed. 


APPENDIX   OF   FOKMS. 


No.     1. 

Builder's  Contract. 

Articles  of  Agreement,  made  this  first  day  of  September,  in  the  year 
one  thousand  eight  hundred  and  sixty-eight,  between  A  B,  of  the  city 
and  county  of  San  Francisco,  party  of  the  first  part,  and  C  D,  of  the 
same  place,  of  the  second  part,  witnesseth,  as  follows,  viz : 

First — The  said  party  of  the  second  part,  for  and  in  consideration 
of  the  payments  hereinafter  agreed  and  covenanted  to  be  made  by  the 
said  party  of  the  first  to  the  said  party  of  the  second  part,  doth  here- 
by covenant  and  agree  with  the  said  party  of  the  first  part,  that  he 
shall  and  will  erect  and  finish  the  building  following,  namely :  That 
new  building  to  be  erected  on  the  northwest  corner  of  E  and  F  streets, 
in  the  city  and  county  of  San  Francisco,  described  in  the  plan,  draw- 
ing and  specifications  hereunto  annexed,  and  that  said  building  shall 
be  so  erected  and  finished  according  to  the  said  plan,  drawings  and 
specifications  hereto  annexed,  made  by  G  H,  architect,  which  plan? 
drawings  and  specifications,  hereto  annexed,  are  signed  by  the  parties 
hereto,  and  are  referred  to  by,  and  form  a  part  of,  this  agreement.  And 
the  said  party  of  the  second  part  hereby  covenants  with  the  party  of  the 
first  part,  that  he  will  perform  and  execute  the  said  work  in  a  good, 
workmanlike  and  substantial  manner,  an4.will  find  and  provide  such 
proper  and  sufficient  materials  of  all  kinds  whatsoever  as  shall  be  pro- 
per and  sufficient,  and  as  required  by  said  specifications  for  completing 
and  finishing  the  foundation,  walls,  floors,  ceilings,  roofings  and  other 
works  of  the  said  building  mentioned  in  the  said  annexed  specifica- 
tions, and  that  said  work  and  said  materials  shall,  in  every  respect,  be 
strictly  according  to  said  plans,  drawings  and  specifications,  and  of  the 


#ORMS.  49 

kind  of  workmanship  and  kind  of  materials  therein  mentioned,  and 
none  other — it  being  understood  that  said  specifications  and  drawings 
are  intended  to  co-operate,  so  that  any  works  exhibited  in  the  drawings 
and  not  mentioned  in  the  specifications,  or  vice  versa,  are  to  be  execu- 
ted the  same  as  if  they  were  mentioned  in  the  specifications  and  set 
forth  in  the  drawings  according  to  the  true  intent  and  meaning  of  said 
drawings  and  specifications.  And  the  said  party  of  the  second  part 
hereby  covenants  and  agrees  with  the  said  party  of  the  first  part,  that 
he  will  well  and  sufficiently  erect  and  finish  said  building  according 
to  the  covenants  and  agreements  herein  contained,  on  or  before 
the  day  of  in  the  year  one  thousand  eight  hundred 

and  sixty  eight. 

Second — The  said  party  of  the  second  part  is,  at  his  own  proper  cost 
and  charges,  to  provide  all  manner  of  materials  and  labor,  scaffolding, 
implements,  moulds,  models,  and  cartage  of  every  description,  for  the 
due  execution  of  this  contract,  and  to  bear  all  risk  or  loss  by  accidents, 
delays,  encroachments,  or  otherwise,  not  caused  by  or  through  any  act 
of  the  party  of  the  first  part. 

Third — Should  the  party  of  the  first  part,  at  any  time  during  the 
progress  of  said  work,  require  any  alterations,  extra  work,  deviations 
or  omissions  from  the  work  so  contracted  to  be  done,  he  shall  be  at 
liberty  to  do  so,  and  the  same  shall  in  no  way  affect  or  make  void  this 
contract ;  but  the  value  thereof  will  be  added  to  or  deducted  from  the 
amount  to  be  paid  by  him  by  the  terms  of  this  contract,  as  the  case 
may  be,  according  to  a  fair  and  reasonable  valuation. 

Fourth — Should  the  party  of  the  second  part,  at  any  time  during 
the  progress  of  the  said  work,  refuse  or  neglect  to  supply  a  sufficiency 
of  material  or  workmen  so  as  to  render  it  impracticable  to  finish  said 
work  within  the  time  said  party  of  the  second  part  has  by  this  con- 
tract covenanted  to  complete  the  same,  the  said  party  of  the  first  part 
shall  have  the  power  to  provide  the  necessary  materials  or  workmen, 
or  both,  after  one  day's  notice  in  writing  being  given  to  the  party  of 
the  second  part  to  provide  the  same;  and  the  expense  of  such  supply, 
by  the  party  of  the  first  part,  shall  be  deducted  from  the  amount  to  be 
paid  for  said  work,  by  said  party  of  the  first  part. 

Fifth — Should  any  dispute  arise  concerning  the  true  construction  or 
meaning  of  the  plans,  drawings  or  specifications,  the  same  is  hereby 
submitted  to  and  shall  be  decided  by  said  architect,  and  his  decision 


50  FORMS. 

thereon  shall  be  final ;  but  should  any  dispute  arise  respecting  the  true 
value  of  any  extra  work  or  materials,  or  work  or  materials  omitted,  the 
same  shall  be  valued  by  two  competent  persons,  one  to  be  nominated 
by  the  party  of  the  first  part,  and  the  other  by  the  party  of  the  second 
part;  and  in  case  of  disagreement  between  said  persons  so  chosen  on 
said  subject  matter  so  submitted,  they  shall  have  power  to  appoint  an 
umpire,  whose  decision  shall  be  binding  on  both  parties  hereto,  and  no 
recourse  shall  be  had  to  law,  but  such  award  shall  be  final  and  conclu- 
sive on  the  matters  so  submitted. 

Sixth — The  said  party  of  the  first  part  shall  not  in  any  manner  be 
answerable  or  accountable  for  any  loss  or  damage  that  shall  or  may 
happen  to  the  said  work  or  any  part  or  parts  thereof,  respectively,  or 
any  of  the  materials  or  other  things  used  and  employed  in  finishing  and 
completing  the  same  during  the  time  of  said  erecting  and  completing, 
except  that  the  party  of  the  first  part  shall  be  liable  for  and  take  all 
risk  by  fire. 

Seventh — No  extra  work  is  to  be  paid  for  unless  the  price  has  been 
fixed  and  agreed  upon  in  writing  by  the  parties  hereto,  and  the  work 
specified,  and  the  agreement  made  for  the  same  at  the  time  the  extra 
work  is  done,  and  no  reductions  or  omissions  are  to  be  allowed  without 
the  price  is  fixed  by  agreement  in  writing  at  the  time  said  omissions  or 
reductions  are  made. 

Eighth — There  shall  be  a  forfeiture  of  dollars  per  day  for  each  and 
every  day  over  the  stated  time  for  the  completion  herein  mentioned,  to 
be  deducted  out  of  the  last  payment.  But  if  the  weather  is  so  wet  or 
inclement  as  to  hinder  the  progress  of  the  work,  a  reasonable  addi- 
tional time  is  to  be  allowed  by  the  party  of  the  first  part  for  the  com- 
pletion of  the  same.  In  all  cases  of  extra  materials  and  work  done  on 
said  job  during  this  contract,  then  the  time  expressed  above  shall  not 
govern,  but  a  reasonable  additional  time  necessary  for  completing  said 
extras  shall  be  allowed.  The  nature,  extent  and  price  of  all  extras,  as 
may  be  agreed  upon,  are  to  be  entered  in  a  written  memorandum  to 
be  attached  to  the  contract  and  signed  by  the  parties  hereto,  and  the 
same  course  is  to  be  followed  in  reference  to  all  omissions  or  reduc- 
tions. 

Ninth — In  consideration  of  the  faithful  performance,  by  the  said 
party  of  the  second  part,  of  the  covenants  and  agreements  herein  con- 
tained, on  his  part  to  be  fulfilled  and  performed,  in  the  erection  and 


FOEMS.  51 

finishing  of  said  building,  said  party  of  the  first  part  hereby  covenants 
and  agrees  with  the  said  party  of  the  second  part,  to  pay  him  therefor 
the  sum  of  ten  thousand  dollars,  in  gold  coin  of  the  Government  of  the 
United  States,  and  in  no  other  currency — to  be  paid  in  manner  following, 
viz:  (Here  specify  the  various  stages  of  the  work  at  which  the  different 
payments  shall  be  made,  if  the  payments  are  to  be  made  as  the  work  pro- 
gresses, or  if  otherwise,  then  specify  the  times  of  payment.) 

Tenth — It  is  hereby  agreed  upon  between  the  parties  hereto,  that  be- 
fore any  payment  is  made  under  this  contract,  the  said  party  of  the 
second  part  shall  satisfy  the  said  architect  that  all  the  materials  fur- 
nished by  said  party  of  the  second  part  for  the  construction  of  said 
building  have  been  paid  for,  and  that  all  work  of  mechanics,  laborers, 
and  others,  hired  or  employed  by  the  said  party  of  the  second  part,  in 
the  construction  of  said  building,  have  been  fully  paid,  so  that  no  lien 
can  be  filed  against  said  building  for  such  materials,  mechanical  work, 
or  labor,  and  that  no  payment  shall  be  made  without  a  certificate  be 
first  obtained  and  signed  by  said  architect,  that  the  said  payment  is 
date,  according  to  the  terms  of  this  contract.  The  payment  and 
discharge,  by  the  said  party  of  the  second  part,  of  all  liens  for  such 
material,  work  and  labor,  or  all  such  claims  as  may  be  made  liens  on 
said  building,  are  hereby  declared  a  condition  precedent  to  the  making 
of  any  payments  under  this  contract,  by  the  party  of  the  first  part  to 
the  party  of  the  second  part. 

IN  WITNESS  WHEREOF,  said  parties  have  hereto  set  their  hands  and 
seals,  the  day  and  year  first  above  written. 

[L.  8.] 
[L.  S.] 

Sealed  and  delivered   ) 

in   the    presence   of  j 


No.     2. 
Another   Form. 


This   agreement,  made   this  day  of  one  thousand 

eight  hundred  and  sixty-eight,  by  and  between  A  B,  of  the  city  and 


52  FORMS. 

county  of  San  Francisco,  of  the  first  part,  and  C  D,  of  the  same  place, 
of  the  second  part,  witnesseth  :  That  the  said  party  of  the  second 
part  covenants  and  agrees  to  and  with  the  said  party  of  the  first  part, 
to  make,  erect  and  finish,  in  a  good,  substantial  and  workmanlike  man- 
ner, on  the  land  of  the  said  party  of  the  first  part,  situate  on  F  street^ 
in  the  city  and  county  of  San  Francisco  (describe  the  location  of  the  lot 
in  general  terms'),  according  to  the  plan  and  specifications  hereto  an- 
nexed, and  of  the  quality  of  materials  and  workmanship  set  forth  in 
said  specifications.  (If  the  materials  are  to  be  furnished  by  the  party 
of  the  first  part,  say :  of  such  materials  as  the  said  party  of  the  first 
part  shall  find  or  provide  for  the  same) ;  and  the  said  party  of  the 
second  part  covenants  and  agrees  with  the  said  party  of  the  first  part 
that  he  will  have  the  said  building  finished  and  completed  according 
to  said  plans  and  specifications  by  the  day  of  next. 

And  the  said  party  of  the  first  part  covenants  and  agrees  to  pay  unto 
the  said  party  of  the  second  part,  for  the  same,  the  sum  of  dollars,  in 
gold  coin  of  the  government  of  the  United  States,  as  follows,  viz  :  The 
sum  of  dollars  in  gold  coin  in  days  from  this  date,  and  the 

remaining  sum  of  dollars   in  like   gold  coin  in  thirty-one   days 

from  the^  day  of  the  said  dwelling  house  being  completely  finished 
according  to  said  plans  and  specifications.  (If  necessary  add:  And 
also  that  said  party  of  the  first  part  will  furnish  and  procure  the  ne- 
cessary materials  for  the  said  work  in  such  reasonable  quantities,  and 
at  such  reasonable  time  or  times,  as  the  said  party  of  the  second  part 
shall  or  may  require.) 

It  shall  be  a  condition  precedent  to  any  of  the  foresaid  payments, 
that  at  the  time  of  such  payment  there  shall  be  no  liens  on  said  build- 
ing arising  out  of  any  claim  for  work  and  labor  done  for,  or  materials 
furnished  by,  any  person  whatever  to  said  party  of  the  second  part, 
in  the  construction  of  said  building,  or  any  claims  existing  arising  from 
such  work,  labor  or  materials,  and  out  of  which  a  lien  may  be  obtained 
by  any  person  or  persons  on  said  building  and  premises  for  such 
work,  labor  or  materials. 

IN  WITNESS  WHEREOF,  said  parties  have  hereto  set  their  hands  and 
seals  the  day  and  year  first  above  written. 

[L.  S.] 
|L.  S.] 

Sealed  and  delivered  ) 

in   the    presence  of  j 


FOEMS.  53 

No.     3. 

Agreement  with  a  Mason  and  Plasterer. 

This  agreement,  made  this  day  of  m  the  year  1868, 

between  A  B,  of,  etc.,  of  the  first  part,  and  C  D,  of,  etc.,  of  the  second 
part,  witnesseth  :  That  the  said  party  of  the  second  part,  for  and  in  con- 
sideration of  the  payments  hereinafter  mentioned,  promises  and  agrees 
to  and  with  the  said  party  of  the  first  part,  that  he  will  do  and  per- 
form in  a  good  and  workmanlike  manner,  and  with  materials  to  be 
furnished  by  the  said  party  of  the  first  part,  all  the  mason  and  lathing 
and  plastering  work,  to  be  done  in  and  about  the  erecting  of  a  new 
dwelling  house,  belonging  to  the  party  of  the  first  part,  situate  on  E 
street,  in  the  city  and  county  of  San  Francisco,  (specify  generally  the 
description  of  the  lot  on  which  the  building  is  about  to  be  erected),  and 
that  according  to  the  plans  and  specifications  hereto  annexed  ;  and  also 
that  he  will  use  all  proper  care  in  working  up  the  materials  to  be  fur- 
nished by  the  said  party  of  the  first  part  as  aforesaid,  to  the  best 
advantage  for  the  said  party  of  the  first  part,  and  that  he  will  complete 
the  said  work  on  or  before  the  day  of  next. 

And  the  said  party  of  the  first  part,  in  consideration  of  the  premises, 
hereby  agrees  to  furnish  and  provide  good  and  sufficient  materials  for 
the  said  work  at  such  time  or  times  as  the  said  party  of  the  second 
part  may  request,  and  to  pay  said  party  of  the  second  part  for  said 
work,  when  finished  and  completed,  the  sum  of  dollars,  in  gold 

coin  of  the  Government  of  the  United  States.  (If  the  work  is  to  be 
paid  for  by  the  yard  or  other  measurement,  and  at  certain  stages  of  the 
work,  as  it  progresses,  then  so  state  as  the  agreement  in  such  respects  may 
be.)  It  is  expressly  understood  and  agreed  upon  between  the  parties 
hereto,  that  no  payment  shall  be  made  by  the  party  of  the  first  part 
under  this  agreement,  at  the  times  above  specified  for  the  payment 
thereof,  unless  all  claims  against  the  said  party  of  the  second  part,  for 
any  labor  or  mechanical  work  done  for  him  by  persons  in  his  employ, 
in  doing  and  performing  the  work  under  this  contract,  or  any  part 
thereof,  are  fully  paid  off  and  discharged  ;  and  that  no  work  or  labor 
performed  by  such  persons,  on  said  building,  out  of  which  could  arise 
a  claim  for  a  lien  under  the  Act  of  the  Legislature  of  the  State  of 
California,  entitled  "  An  Act  for  Securing  Liens  of  Mechanics  and 
others,"  approved  30th  March,  1868,  shall  remain  unsatisfied.  (Or  in- 


54  FOKMS. 

stead  of  the  above  insert  as  follows  :  Before  any  payment  is  made 
under  this  contract,  the  said  party  of  the  second  part  shall  prove  to 
the  satisfaction  of  G  H,  who  is  hereby  mutually  selected  and  agreed 
upon  for  that  purpose,  that  no  claim  or  demand  is  outstanding  for  any 
mechanical  work  or  labor  performed  on,  or  materials  furnished  for 
said  work  by  any  person  or  persons  in  the  employ  of  said  party  of  the 
second  part,  and  out  of  which  a  lein  could  be  claimed  or  maintained 
against  the  said  building  and  premises  ;  and  said  payments  shall  not  be 
made  until  the  said  party  of  the  second  part  furnishes  the  said  party 
of  the  first  part,  the  said  G  H's  certificate  in  writing  to  that  effect.) 

IN  WITNESS  WHEREOF,  said  parties  have  hereto   set  their  hands  and 
seals  the  day  and  year  first  above  written. 


Sealed  and  delivered 
in   the    presence   of 


No.     4, 

Bond  for  the  Performance  of  Building  Contract. 

Know  all  men  by  these  presents,  that  we,  A  B,  C  D,  and  E  F,  all 
of  the  city  and  county  of  San  Francisco,  are  held  and  firmly  bound 
unto  G  H,  of  the  same  place,  in  the  sum  of  ten  thousand  dollars  (or 
such  other  sum  as  may  cover  all  possible  damages),  lawful  money  of  the 
United  States,  to  be  paid  to  the  said  G  H,  his  executors,  administra- 
tors or  assigns ;  for  which  payment,  well  and  truly  to  be  made,  we  bind 
ourselves,  our  and  each  of  our  neirs,  executors,  and  administrators, 
jointly  and  severally  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  this  day  of  one  thou- 

sand eight  hundred  and  sixty-eight. 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  said 
A  B  did  at  the  date  hereof  enter  into  a  contract  in  writing  with  the 
said  G  H,  by  which  the  said  A  B  agreed  to  erect  a  certain  dwelling 
house  for  the  said  G  H,  and  fully  fulfil  and  perform  all  the  covenants, 


FORMS.  55 

agreements  and  stipulations  therein  contained  on  the  part  of  said  A  B, 
to  be  so  fulfilled  and  performed,  a  copy  of  which  agreement  is  hereto 
annexed. 

Now,  therefore,  if  the  above  bounden  A  B,  his  executors,  administra- 
tors or  assigns,  shall  in  all  things  stand  to,  abide  by,  and  well  and 
truly  keep  and  perform  the  covenants,  conditions  and  agreements  in 
the  within  written  instrument  (if  the  bond  is  endorsed  on  the  agree- 
ment itself,  or  in  the  instrument  of  which  the  annexed  is  a  copy)  con- 
tained on  his  part,  to  be  kept  and  performed  at  the  time  and  in  the 
manner  and  form  therein  specified,  then  the  above  obligation  shall  be 

void  ;  else  to  remain  in  full  force  and  virtue. 

A  B.  [L.  S.] 
C  D.  [L.  S.] 
E  F.  [L.  S.] 

Sealed  and  delivered   ) 

in    the   presence  of   j 


No.     5. 

Statement    of    Builder    made    to    Architect,    Referee,    or 
Party  as  to  Liens. 

I,  A  B,  the  party  of  the  second  part,  in  the  written  agreement  (or 
in  the  agreement  annexed,  or  in  the  agreement  of  which  the  within  is 
a  copy)  named,  having,  as  I  claim,  performed  so  much  of  said  agree- 
ment as  to  entitle  me  to  the  first  (or  second  or  third,  as  the  case  may  be) 
payment  in  the  within  agreement,  covenanted  by  the  party  of  the  first 
part  therein  to  be  paid  to  me,  do  hereby  declare  that  I  do  not  owe» 
nor  am  I  liable  to  any  person  or  persons,  for  any  work  or  labor  done  or 
performed  for  me  in  the  said  work  so  far  as  it  has  progressed,  nor  for 
any  materials  furnished  to  me  by  any  person  or  persons  whatever,  in 
carrying  on  the  said  work,  so  far  as  it  has  progressed,  and  that  I  have 
incurred  no  debt  whatever  in  the  performance  of  said  contract,  which 
can  at  any  time,  by  the  laws  of  the  State  of  California,  be  made  a  lien 
on  the  building  or  premises  in  said  agreement  described.  This  state- 


56  FOKMS. 

ment  is  made  to  enable  me  to  obtain  the  said  payment,  which  I  claim 
to  be  now  due  under  said  agreement. 

Witness  my  hand  this  day  of  1868. 


No.     6. 

Notice,  under  Sec.  4,  by  the  Owner  of  the  Land  that  he 
will  not  be  Liable  for  Improvement. 

To  all  whom  it  may  concern — 

Take  notice,  that  whereas  I,  A  B,  am  the  owner  of  the  following 
described  lot  of  land  in  the  city  and  county  of  San  Francisco,  viz  : 
(Here  describe  the  land,  and  if  the  person  giving  notice  merely  claims  an 
interest  in  the  land  instead  of  the  words  "  am  the  owner  of,"  say  "claim 
an  interest  in;")  and  that  I  have  within  the  last  three  days  obtained 
knowledge  that  the  following  construction  (or  alteration,  or  repair  as 
the  case  may  be)  has  been  commenced  to  be  made  (or  "  has  been 
made"  as  the  case  may  be,  or  that  it  is  intended,  or  in  contemplation  to 
make  the  following  construction,  alteration  or  repair),  viz :  (Here  de- 
scribe it.)  I  hereby  declare  I  will  not  be  responsible  for  such  construc- 
tion (alteration  or  repair,  as  the  case  may  be)  ;  that  the  same  is  done 
without  my  consent,  authority,  license  or  permission,  and  that  I  will 
oppose  any  attempt  to  make  the  same  a  lien  upon  the  land  and  premi- 
ses above  described. 

A  B. 

Dated  San  Francisco,          ) 
day   of  1868.  J 


Claim  of  Lien  by  Contractor. 

State  of  California,  City  and  County  of  San  Francisco. 
A     B 

vs. 

C    D. 
Notice  is  hereby  given  to  all  whom  it  may  concern,  that  I,  A  B,  of  the 


FORMS.  57 

city  and  county  of  San  Francisco,  have  performed  work  and  labor  and 
furnished  materials  for  the  construction  of  the  building  erected  and 
now  being  upon  the  land  and  premises  hereinafter  more  particularly 
described  as  a  contractor. 

That  it  is  my  desire  to  avail  myself  of  the  benefits  of  the  Act  of  the 
Legislature  of  the  State  of  California,  entitled  "  An  Act  for  Securing 
Liens  of  Mechanics  and  others,"  approved  30th  of  March,  1868  ;  and 
that  it  is  my  intention  to  claim  a  lien  upon  the  premises  aforesaid  and 
hereinafter  described,  and  to  claim  and  hold  such  lien  not  only  on  said 
building  or  superstructure  so  erected,  but  also  upon  the  land  upon 
which  the  same  is  so  erected,  and  with  a  convenient  space  around  the 
same,  or  so  much  as  may  be  required  for  the  convenient  use  and  occu- 
pation thereof,  or  upon  such  interest  as  C  D,  the  person  with  whom  I 
contracted,  had  in  said  premises,  on  the  day  of  1868, 

when  said  work  commenced  and  when  said  materials  were  begun  by 
me  to  be  furnished  for  the  construction  of  said  building. 

That  the  following  is  a  true  statement  of  my  demand,  for  which  I 
claim  such  lien,  namely  :  On  the  day  of  1868,  I  entered 
into  a  written  contract  with  said  C  D,  to  erect  a  dwelling  house  on 
said  premises,  and  furnish  the  materials  therefor,  according  to  certain 
plans  and  specifications  annexed  to  said  written  agreement  (or  state  gener- 
ally what  the  work  was  that  was  to  be  done}.  That  said  work  was  com- 
menced and  said  materials  begun  to  be  furnished  on  the  day  of 
1868.  That  said  work  has  been  completed  according  to  said  contract, 
and  that  sixty  days  have  not  elapsed  since  the  completion  of  said  work 
or  building  so  contracted  to  be  by  me  erected,  and  the  completion  of 
my  said  contract.  That  the  price  agreed  to  be  paid  to  me,  by  said 
C  D,  under  said  contract,  for  said  work,  was  the  sum  of  ten  thousand 
dollars, $10,000.00 

That  there  is  besides  due  to  me,  for  extra  work  and  extra 
materials,  done  and  furnished  for  said  superstructure, 
at  the  instance  and  request  of  said  C  D,  the  sum  of 
two  thousand  dollars, $2,000.00 

The  total  amount   for  said    work   and  materials   being  $12,000.00 
twelve  thousand  dollars,  for  which  I  have  since  the 
entering  into  said  contract,  received,   at  sundry  times, 
from  the  said  C  D,  to  apply  on  the  same,  the  sum  of 


f^  or 

SJ-IITI. 

0 


58  FOEMS. 

five  thousand  five  hundred  dollars, $5,500.00 


$6,500.00 

Leaving  a  balance  now  due  to  me  on  said  work,  from  said  C  D,  of 
six  thousand  five  hundred  dollars  ;  and  that  the  said  balance  is  justly 
due  to  me  on  the  same,  after  deducting  all  just  credits  and  offsets. 
That  C  D  is  the  name  of  the  owner  of  said  premises  before  mentioned 
and  hereinafter  particularly  described,  and  that  he  was  the  person  who 
employed  me,  and  with  whom  I  entered  into  said  contract  to  do  said 
work  and  furnish  said  materials,  as  aforesaid.  That  the  following  is  a 
description  of  the  property  to  be  charged  with  such  lien,  viz :  That 
piece  or  parcel  of  land  situate,  lying  and  being  in  the  city  and  county 
of  San  Francisco,  and  State  of  California,  bounded  and  described  as 
follows,  viz  :  Beginning  at  a  point  in  the  east  line  of  B  street,  one 
hundred  feet;  south  from  the  intersection  of  said  east  line  of  B  street 
with  the  south  line  of  A  street ;  running  thence  south  along  the  said 
east  line  of  B  street  twenty-five  feet ;  thence  easterly  at  right  angles 
to  the  east  line  of  B  street,  one  hundred  feet ;  thence  northerly  at  right 
angles  twenty-five  feet,  and  thence  at  right  angles  westerly  one  hun- 
dred feet  to  the  place  of  beginning,  with  the  said  building,  and  all 
other  appurtenances  thereto  belonging. 

A  B. 

San   Francisco,  day  of          ) 

1868. 


City  and  County  of  San  Francisco,  ss  : 

A  B  being  duly  sworn,  deposes  and  says,  that  he  is  the  claimant  in 
the  above  claim  and  notice  of  intention  to  hold  a  lien  named  ;  that  he 
has  read  the  said  claim  and  notice  by  him  subscribed,  and  knows  the 
contents  thereof,  and  that  the  same  i«yin  all  respects  just  and  true,  and 
that  it  contains  a  just  and  true  statement  of  the  demand  due  to  him 
after  deducting  all  just  credits  and  offsets. 

A  B. 

Sworn  to  before  me  this 

day    of  1868. 

[L.  S.]         C  D,  Notary  Public. 


FOKMS.  59 

No.     8. 

Verification  of  Claim  by  Agent. 

City  and  County  of  San  Francisco,  ss  : 

E  F  being  duly  sworn,  deposes  and  says,  that  he  is  the  clerk  and 
book-keeper  of  A  B,  the  claimant  named  in  the  above  claim  and  notice 
of  intention  to  hold  a  lien,  and  is  authorized  and  empowered  by  said 
A  B,  as  his  said  clerk  and  agent,  to  prepare  and  file  the  above  claim 
and  notice  ;  that  deponent  has  read  said  claim  and  notice,  and  knows 
the  contents  thereof,  and  that  the  same  is  in  all  respects  just  and  true, 
and  contains  a  just  and  true  statement  of  the  demand  due  to  said  A 
B,  after  deducting  all  just  credits  and  offsets.  That  deponent  has 
personal  knowledge  of  all  the  facts  stated  and  set  forth  in  said  claim 
and  notice,  and  knows  the  same  to  be  true,  and  that  the  reason  why 
this  affidavit  is  made  by  this  deponent  and  not  by  said  A  B,  is  that  at 
the  making  thereof,  the  said  A  B  is  temporarily  absent  from  said  city 
and  county  of  San  Francisco. 

E  F. 

Sworn  to  before  me  this          ") 
day    of  1868.  j 

[L.  S.]         C  D,  Notary  Public. 


No.      9. 

Claim  of  Lien  by  Material  Man. 

Notice  is  hereby  given  to  all  whom  it  may  concern,  that  I,  A  B,  of 
the  city  and  county  of  San  Francisco,  have  furnished  materials  for  the 
construction  of  the  building  erected  and  now  being  upon  the  land  and 
premises  hereinafter  more  particularly  described. 

That  it  is  my  desire  to  avail  myself  of  the  benefits  of  the  Act  of  the 
Legislature  of  the  State  of  California,  entitled  "  An  Act  for  Securing 
Liens  of  Mechanics  and  others,"  approved  30th  of  March,  1868  ;  antf 
that  it  is  my  intention  to  claim  a  lien  upon  the  premises  aforesaid  and 


60  FORMS. 

hereinafter  described,  and  to  claim  and  hold  such  lien,  not  only  on  said 
building  or  superstructure  so  erected,  but  also  upon  the  land  upon 
which  the  same  is  erected,  with  a  convenient  space  about  the  same,  or 
so  much  as  may  be  required  for  the  convenient  use  and  occupation 
thereof,  or  as  C  D,  the  owner  (or  reputed  owner)  of  said  land  and 
premises,  had  on  the  day  of  1868,  when  said  materials 

were  commenced  by  me  to  be  furnished  for  said  building  or  super- 
structure. 

That  E  F  is  the  person  by  whom  I  was  employed  to  furnish  the  said 
materials  for  said  construction,  and  to  whom,  at  his  special  instance 
and  request,  I  did  furnish  said  materials,  the  said  E  F  being  engaged 
as  contractor,  under  said  C  D,  in  erecting  said  building,  and  said  C 
D  is  the  owner  of  said  land,  building  and  premises. 

That  the  following  is  a  true  statement  of  my  demand,  for  which  1 
claim  such  lien,  namely  :  Materials,  to  wit :  Lumber  to  the  amount 
and  of  the  value  of  one  thousand  dollars,  which  said  lumber  was  fur- 
nished by  me  to  the  said  E  F,  to  be  used,  and  was  in  fact  used,  in  the 
construction  of  the  said  building.  That  the  said  E  F  has  paid  to  me, 
upon  account  of  said  lumber  so  furnished,  the  sum  of  five  hundred 
dollars,  and  that  there  is  now  due  to  me  from  said  E  F  therefor,  the 
sum  of  five  hundred  dollars,  after  deducting  all  just  credits  and  offsets. 
That  the  said  lumber  was  commenced  by  me  to  be  furnished,  for  said 
construction,  on  the  day  of  1868,  and  was  continued  so  to  be 
furnished  up  to  and  including  the  day  of  1868,  and  that 

thirty  days  have  not  elapsed  since  the  completion  of  said  building. 
That  the  following  is  a  description  of  the  property  to  be  charged  with 
said  lien,  viz  :  (Here  describe  property  as  fully  as  in  No.  7,  and  add 
the  affidavit  of  verification.) 


No.     10. 

Claim   of  Lien  by  Journeyman  Carpenter. 

To  all  whom  it  may  concern  : 
Take  notice,  that  I,   A  B,  of  the  city  and  county  of  San  Francisco, 


FORMS.  61 

have  performed  labor  in  the  construction  (or  repair  or  alteration,  as  the 
case  may  be)  of  the  building  and  superstructure,  erected  and  now 
being  upon  the  land  and  premises  hereinafter  more  particularly  de- 
scribed, as  a  journeyman  carpenter  and  joiner. 

That  it  is  my  desire  to  avail  myself  of  the  benefits  of  the  Act  of  the 
State  of  California,  entitled  "  An  Act  for  Securing  Liens  of  Mechanics 
and  others,"  approved  30th  March,  1868,  and  it  is  my  intention  to  claim 
a  lien  for  said  labor  upon  the  premises  aforesaid  and  hereinafter  de- 
scribed ;  and  that  it  is  my  intention  to  claim  and  hold  such  lien,  not 
only  upon  the  said  building  and  superstructure,  but  also  upon  the 
land  upon  which  the  same  are  erected,  together  with  a  convenient  space 
around  the  same,  or  so  much  as  may  be  required  for  the  convenient 
use  and  occupation  thereof. 

That  the  following  is  a  true  statement  of  my  demand  on  which  I 
found  said  claim  for  a  lien,  namely  : 

Thirty  days  work  on  said  building  or  superstructure,  as  a  journey- 
man carpenter  and  joiner,  commencing  on  the  day  of  1868, 
and  ending  on  the  day  of  1868,  and  performed  between 
said  two  dates,  at  the  rate  of  five  dollars  per  day,  payable  in  gold  coin 
of  the  United  States ;  the  amount  of  said  thirty  days  work  at  said  rate 
being  one  hundred  and  fifty  dollars,  on  which  I  have  been  paid  the 
sum  of  seventy-five  dollars,  leaving  due  to  me  for  said  work  a 
balance  of  seventy -five  dollars,  after  deducting  all  just  credits  and  offsets. 
That  the  name  of  the  owner  (or  reputed  owner)  of  said  building  or 
superstructure,  and  of  the  premises  hereinafter  described,  is  C  D.  That 
the  name  of  the  person  by  whom  I  was  employed  to  do  said  carpenter 
and  joiner  work  on  said  building  is  E  F,  who  was  the  contractor  (or 
the  sub-contractor  under  the  principal  contractor)  employed  by  said  C 
D  in  the  erection  (or  repair  or  alteration,  as  the  case  may  be)  of  said 
building  and  superstructure ;  that  thiry  days  have  not  elapsed  since 
the  completion  of  said  building  or  superstructure,  and  said  sum  of 
seventy-five  dollars  remains  due  and  unpaid.  That  the  following  is  a 
description  of  the  property  which  I  seek  to  charge  with  said  lien,  viz : 
(Here  insert  description  and  then  follow  with  affidavit  of  verification  as 
before.) 


62  FOEMS. 

No.     11. 

Claim  of  Lien  by  Laborer  on   Two  Contiguous  Buildings 
Under  Section   7. 

To  all   whom   it  may  concern : 

Take  notice  that  I,  A  B,  of  the  city  and  county  of  San  Francisco^ 
have  performed  labor  in  the  construction  of  the  two  contiguous  and 
adjoining  buildings,  erected  and  now  being  upon  the  land  and  premises 
hereinafter  more  particularly  described,  as  a  hodman  in  carrying  bricks 
and  mortar  to  said  building,  and  attending  as  such  on  the  masons  and 
bricklayers  while  engaged  in  the  erection  of  said  buildings  (or  whatever 
else  the  work  may  be.) 

That  it  is  my  desire  to  avail  myself  of  the  benefits  of  the  Act,  etc., 
etc.  (describe  the  intention  to  claim  lien  as  in  previous  forms). 

That  the  following  is  a  true  statement  of  my  demand  on  which  I 
found  my  said  claim  for  a  lien,  namely : 

I  performed  labor  of  the  kind  above  described  on  said  two  contigu- 
ous and  adjoining  houses  and  buildings  for  the  period  of  thirty  days, 
at  the  rate  of  three  dollars  per  day,  payable  in  United  States  gold 
coin,  making  for  said  work,  on  said  two  buildings,  the  sum  of  ninety 
dollars  in  all ;  that  twenty  days  of  said  labor,  making  the  sum  of  sixty 
dollars,  was  performed  on  the  south  house  or  building,  on  said  premi- 
ses, and  ten  days  of  said  labor,  making  the  sum  of  thirty  dollars,  on 
the  north  house  or  building,  on  said  premises  adjoining  and  contiguous 
to  said  south  house.  That  said  labor  was  performed  between  the 
day  of  1868,  and  the  day  of  1868.  That  no  part 

of  said  sum  of  ninety  dollars  has  been  to  me  paid,  and  the  said  sum  of 
ninety  dollars,  for  the  work  and  labor  aforesaid,  is  justly  due  to  me 
after  deducting  all  just  credits  and  offsets.  That  the  name  of  the 
owner  of  said  contiguous  and  adjoinihg  houses  and  the  premises  here- 
inafter described,  is  C  D.  That  the  name  of  the  person  by  whom  I 
was  employed  to  do  said  labor  on  said  buildings,  is  E  F,  who  was  the 
contractor  employed  by  said  C  D  in  the  erection  of  said  contiguous 
and  adjoining  buildings  or  houses ;  that  thirty  days  have  not  elapsed 
since  the  completion  of  said  contiguous  or  adjoining  buildings  or 
houses,  or  either  of  them,  and  no  part  of  said  sum  of  ninety  dollars 
has  been  to  me  paid,  but  the  whole  thereof  remains  justly  due  and  un- 
paid as  aforesaid.  That  the  following  is  a  correct  description  of  the 


oar 


FOKMS.  63 


premises  which  I  seek  to  charge  with  said  lien  :  (Here  insert  descrip- 
tion, and  then  follow  with  the  affidavit  of  verification  as  in  previous 
forms.  This  form  can  be  varied  so  as  to  be  adapted  to  any  other  kind  of 
work,  or  for  materials  furnished.} 


No.     12. 

Claim  of  Lien  by  Sub-Contractor. 

To  all  whom  it  may  concern  : 

Take  notice  that  I,  A  B,  of  the  city  and  county  of  San  Francisco* 
have  furnished  certain  materials  and  performed  certain  mechanical 
work  and  labor,  which  materials  and  work  and  labor  were  used  in  the 
construction,  painting  and  finishing  of  a  certain  building  or  superstruc- 
ture, in  the  city  and  county  of  San  Francisco,  hereinafter  more 
particularly  described ;  and  that  the  said  materials  and  work  consisted 
of  painting  materials  and  work  and  labor  in  painting  said  building  or 
superstructure,  as  more  particularly  hereinafter  mentioned. 

That  it  is  my  desire  to  avail  myself  of  the  benefits  of  the  Act,  etc., 
etc.  (Describe  the  intention  to  claim  lien  as  in  previous  forms.) 

That  the  following  is  a  true  statement  of  my  demand  on  which  I 
found  said  claim  for  a  lien :  On  the  day  of  1868, 1,  as  a  sub- 
contractor, entered  into  a  contract  in  writing  with  one  C  D,  who  was 
the  contractor  employed  by  E  F,  the  owner  of  said  building  and  premi- 
ses, to  erect  said  building  on  said  premises,  by  which  contract  so  en- 
tered into  between  said  C  D  and  myself,  I  contracted  with  said  C  D,  to 
do  and  perform  all  the  painting  requisite  and  necessary  to  be  done  on 
said  building,  according  to  the  plans  and  specifications  specified  in  the 
contract  in  writing,  between  said  C  D  and  said  E  F  for  the  erection  of 
said  building,  and  furnish  all  the  materials  necessary  for  the  same  (or 
whatever  the  contract  was,  setting  it  forth  particularly,  and  the  time  the 
payments  became  due),  for  which  the  said  C  D,  by  the  terms  of  his  said 
contract  with  me,  was  to  pay  to  me  the  sum  of  eight  hundred  dollars, 
in  United  States  gold  coin.  That  I  have  fully  completed  my  said  con- 


64  FORMS. 

tract,  and  said  C  D  has  paid  me  thereon  the  sum  of  five  hundred  dol- 
lars, and  that  there  remains  due  to  me,  by  the  terms  of  said  contract, 
for  said  work  and  materials,  done  and  furnished,  under  said  contract, 
the  just  and  full  sum  of  three  hundred  dollars,  after  deducting  all  just 
credits  and  offsets. 

That  E  F  is  the  owner  of  said  building  and  the  premises  hereinafter 
described,  and  said  C  D,  the  contractor  under  said  E  F,  is  the  person 
who  employed  me  as  sub-contractor,  to  do  and  perform  said  painting, 
and  furnish  said  materials  therefor,  and  with  whom  I  entered  into  the 
contract  aforesaid,  for  such  painting  and  materials.  That  thirty  days 
have  not  elapsed  since  the  completion  of  said  building  or  superstruc- 
ture, and  said  sum  of  three  hundred  dollars  remains  due  to  me  and  un- 
paid. That  the  following  is  a  description  of  the  property  which  I  seek 
to  charge  with  said  lien,  viz  :  (Here  insert  description  and  then  follow 
with  affidavit  of  verification  as  before.') 


No.    13. 

Claim  of  Lien  by  a  Miner. 

NEVADA  COUNTY,  ss : 

To  all  whom  it  may  concern  :  Take  notice  that  I,  A  B,  of  Grass 
Valley,  in  said  county,  have  performed  labor  as  a  miner  in  a  certain 
mine,  commonly  called  the  El  Dorado  Mine,  situate  at  in  said 

county,  and  hereinafter  more  particularly  described. 

That  for  my  said  labor,  it  is  my  Desire  to  avail  myself  of  the  benefit, 
etc.,  etc.  (reciting  the  Act  as  in  the  foregoing  notices'),  and  that  it  is  my 
intention  to  claim  a  lien  upon  said  mine  and  its  appurtenances,  as  here- 
inafter described,  and  sufficient  space  around  the  same,  or  so  much 
thereof  as  may  be  required  for  the  convenient  working,  use  and  occu- 
pation of  said  mine. 

That  the  following  is  a  true  statement  of  my  demand  for  such  labor, 
under  which  I  claim  such  lien,  viz  : 

Thirty  days  labor  in  said  mine,  as  a  miner  in  (here  describe  the  work 


FOKMS.  65 

generally,  showing  it  is  labor  performed  in  a  mine).  That  the  value  of 
said  labor  (or  the  amount  agreed  to  be  paid  for  said  labor)  is  five  dol- 
lars per  day,  making  the  whole  amount  due  for  said  labor  one  hundred 
and  fifty  dollars.  That  said  labor  commenced  to  be  performed  by  me 
on  the  day  of  1868,  and  ended  on  the  day  of 

1868,  and  was  done  and  performed  within  the  said  two  dates. 

That  the  name  of  the  owner  of  said  mine  is  "  The  El  Dorado  Mining 
Company,"  a  mining  corporation  created  under  the  laws  of  this  State, 
and  the  person  by  whom  I  was  employed  to  do  the  said  labor  was  C 
D,  the  superintendent  of  said  mine,  duly  appointed  such  by  said  cor- 
poration, and  having  authority  from  said  corporation  to  employ  me  in 
performing  the  labor  aforesaid. 

That  no  part  of  my  said  demand  has  been  paid,  and  there  remains 
due  to  me  therefor,  the  said  sum  of  one  hundred  and  fifty  dollars,  after 
deducting  all  just  credits  and  offsets.  That  thirty  days  have  not  ex- 
pired since  the  performance  by  me  of  said  labor  in  said  mine.  That  the 
following  is  a  description  of  the  said  mine  and  property  on  which  I 
claim  a  lien  as  aforesaid,  viz :  (Here  describe  the  mine,  showing  the 
mining  district  in  which  it  is  located,  the  number  of  feet  of  ground  over 
which  the  mine  extends  and  which  it  includes,  all  which  will  generally  be 
found  in  the  deed  or  claim  recorded  in  the  office  of  the  District  Recorder, 
and  then  close  with  the  usual  verification.  This  form  can  be  changed  so 
as  to  be  adapted  to  the  claim  of  a  contractor  for  excavating  a  mine,  or 
for  repairing  a  mine,  or  for  erecting  an  aqueduct  leading  to  a  mine,  or 
excavating  a  ditch  or  canal  leading  to  a  mine,  excavating  a  tunnel  or 
other  work  connected  with  a  mine.  It  is  unnecessary  to  multiply  forms 
on  the  subject  of  mines  or  mills.  The  subject  itself  will  suggest  the  pro- 
per form  taken  in  connection  with  the  forms  already  given.) 


No.     14. 

Claim  of  Lien  for  Grading  or  Improving  a  Town  or  City  Lot 
Under  Section  9. 

CITY  AND  COUNTY  OF  SAN  FRANCISCO,  ss  : 

To  all  whom  it  may  concern  :     Take  notice  that  I,  A  B,  of  the  city 


66  FOKMS. 

and  county  of  San  Francisco,  have  performed  labor  and  furnished 
materials  in  filling  in  and  grading  a  certain  city  lot  in  the  incorporated 
city  of  San  Francisco  aforesaid,  and  hereinafter  more  particularly 
described. 

That  it  is  my  desire  to  avail  myself  of  the  benefits  of  the  Act,  etc. 
etc.  (describing  the  Act  as  in  foregoing  forms),  and  that  to  secure  me 
payment  for  my  said  labor  and  materials,  it  is  my  intention  to  claim  a 
lien  upon  the  whole  of  said  lot,  more  fully  and  particularly  hereinafter 
described. 

That  the  following  is  a  true  statement  of  my  demand  for  such  labor 
and  materials  under  which  I  claim  said  lien,  namely  :  On  the  day 

of  1868, 1  entered  into  a  contract  in  writing  with  C  D,  to  fill  in 

and  grade  said  lot,  and  that  I  was  by  said  contract,  to  (here  describe 
generally  what  A  B  was  to  do  by  the  terms  of  the  contract  and  what  the 
particular  improvement  was  he  was  to  execute,  showing  it  was  either  gra~ 
ding,  filling  in,  o?  otherwise  improving  the  lot  or  the  street  in  front  of  it 
or  adjoining  it.)  That  by  said  contract,  I  was  to  be  paid  by  C  D,  for 
said  work,  labor  and  materials,  when  the  same  was  completed,  the  sum 
of  one  thousand  dollars  in  United  States  gold  coin  (or  that  he  was  to 
be  paid  so  much  afoot,  and  state  what  the  total  amount  of  the  work  is  so 
calculated.) 

That  I  commenced  the  said  work  on  the  day  of  1868, 

and  completed  the  same  on  the  day  of  and  that  thirty 

days  have  not  expired  since  the  completion  of  the  said  work  by  me. 
That  there  is  due  to  me  for  said  work,  labor  and  materials,  the  just  and 
full  sum  of  one  thousand  dollars,  and  that  said  sum  of  one  thousand 
dollars  is  so  due  to  me  after  deducting  all  just  credits  and  offsets. 
That  said  C  D  is  the  owner  of  said  city  lot,  and  he  is  the  person  by 
whom  1  was  so  employed,  and  for  whom  and  to  whom  I  did  said  labor 
and  furnished  said  materials  as  aforesaid.  That  the  following  is  a  de- 
scription of  the  lot  of  land  on  which  I  made  said  improvement  and  did 
such  work  and  labor,  and  for  which  I  furnished  said  materials,  viz : 
That  lot  of  land  in  the  city  and  county  of  San  Francisco,  State  of 
California,  bounded  and  described  as  follows,  viz :  Commencing  at  the 
intersection  of  the  south  line  of  B  street  with  the  east  line  of  A  street ; 
thence  running  south  along  the  east  line  of  A  street  one  hundred  feet; 
thence  at  right  angles  easterly  and  parallel  with  B  street,  one  hundred 
and  fifty  feet ;  thence  at  right  angles  northerly  and  parallel  with  A 


FOKMS.  67 

street  one  hundred  feet,  to  the  southerly  line  of  B  street,  and  thence 
westerly  along  the  southerly  line  of  B  street  one  hundred  and  fifty 
feet,  to  the  place  of  beginning  (and  add  affidavit  of  verification). 


No.    15. 

Complaint  on  a  Lien  Claimed  by  Material  Man. 

In  the  District  Court   of  the  Judicial  District  of  the  State  of 

California  in  and  for  the  city  and  county  of  San  Francisco. 

JOHN  BROWN, 

Plaintiff, 
vs. 

JOHN  SMITH, 
WILLIAM  JONES, 
GEORGE  MARTIN   and 
RICHARD   WILSON, 
Defendants. 

State  of  California,  City  and  County  of  San  Francisco,  ss  : 

John  Brown,  plaintiff  in  the  above  entitled  action,  by  A  B,  his  attor- 
ney, complains  of  the  above  named  defendants,  John  Smith,  William 
Jones,  George  Martin  and  Richard  Wilson,  and  for  cause  of  action, 
shows  to  the  Court  as  follows,  viz  : 

That  the  defendant,  John  Smith,  was  at  the  time  of  the  accruing  of 
the  lien  of  the  plaintiff  after  mentioned,  and  since  hitherto,  has  been 
the  owner  in  fee  of  the  following  described  piece  or  parcel  of  land 
situate,  lying  and  being  in  the  city  and  county  of  San  Francisco,  and 
bounded  and  described  as  follows,  viz :  Commencing  at  the  intersec- 
tion of  the  south  line  of  A  street  with  the  east  line  of  B  street ; 
thence  running  south  along  the  east  line  of  B  street  twenty-five  feet ; 
thence  east  at  right  angles  and  parallel  with  A  street  one  hundred 
feet;  thence  north  at  right  angles  and  parallel  with  B  street  twenty- 
five  feet,  to  the  south  line  of  A  street  ;  thence  west  along  the  south 
line  of  A  street  to  the  place  of  beginning,  with  the  appurtenances 
thereto  belonging. 


68  FORMS. 

That  on   the  day  of  1868,   the   said  defendant,   John 

Smith,  entered  into  an  agreement,  in  writing,  with  the  defendant, 
William  Jones,  at  said  city  and  county,  by  which  the  said  William 
Jones,  for  certain  considerations  therein  expressed,  agreed  to  erect,  for 
said  John  Smith,  on  the  premises  above  described,  a  certain  building 
or  dwelling  house,  of  the  dimensions  in  the  manner  and  of  the 
materials  in  said  written  contract  expressed. 

That  the  said  Jones,  in  pursuance  of  the  said  agreement,  went  on 
and  finished  and  completed  said  building  or  dwelling  house,  on  or 
about  the  day  of  1868,  and  said  building  or  dwelling 

house  is  erected  on  said  above  described  land,  and  within  the  bounda- 
ries thereof,  as  above  described  and  set  forth. 

That  at  sundry  times  between  the  day  of  1868,  and  the 

day  of  1868,  and  while  the   said  building  or  dwelling- 

house  was  in  progress  of  erection  by  the  said  defendant  Jones,  under 
his  said  contract  with  the  said  defendant  Smith,  the  said  plaintiff  did, 
at  the  special  instance  and  request  of  the  said  defendant  William  Jones, 
furnish,  sell  and  deliver  to  said  Jones  a  large  quantity  of  lumber,  and 
materials  for  the  erection  and  construction  of  the  said  building  so  con- 
tracted by  him  with  said  defendant  Smith,  to  be  erected  as  aforesaid, 
and  that  the  said  lumber  and  materials  were  furnished  by  this  plaintiff 
for,  and  to  be  used,  and  were  so  used,  by.  said  Jones  in  the  erection  of 
the  said  building  or  dwelling  house  ;  that  said  lumber  and  materials 
were  commenced  to  be  furnished  by  this  plaintiff,  to  said  defendant 
Jones,  for  the  purpose  aforesaid,  on  the  day  of  1868. 

That  the  said  lumber  and  materials  so  furnished,  as  aforesaid,  were 
of  great  value,  to  wit :  of  the  value  of  one  thousand  dollars;  and  that 
of  the  said  amount,  there  has  been  paid  to  this  plaintiff  the  sum  of  five 
hundred  dollars,  and  there  remains  due  to  the  said  plaintiff,  for  the 
same,  the  sum  of  five  hundred  dollars,  no  part  thereof  having  been 
paid  by  said  defendants  Smith  or  Jones. 

That  within  thirty  days  after  the  completion  of  the  said  house  or 
building,  and  on  the  day  of  1868,  the  said  sum  of  $500, 

still  remaining  due  to  said  plaintiff,  the  said  plaintiff  did  file,  with  the 
County  Recorder,  of  the  said  city  and  county  of  San  Francisco,  a  claim 
in  writing,  containing  a  true  statement  of  his  said  plaintiff's,  said  de- 
mand for  said  lumber  and  materials,  after  deducting  all  just  credits  and 
offsets,  and  showing  that  said  $500  was  justly  due  to  him,  said  plaintiff, 


FOEMS.  69 

therefor.  Also,  setting  forth  in  said  claim  the  name  of  the  said  defen- 
dant, John  Smith,  as  the  owner  of  the  said  property  above  described, 
and  designating  him  as  such,  and  also  the  name  of  the  said  William 
Jones  as  the  person  to  whom  the  said  plaintiff  furnished  the  said 
materials,  and  by  whom  this  plaintiff  was  employed  so  to  furnish  the 
same,  and  also  a  description  of  the  above  described  real  estate,  build- 
ing or  dwelling  house  and  premises,  which  the  said  plaintiff  seeks  to 
charge  with  a  lien  for  said  claim,  and  which  description  of  said  pro- 
perty, in  said  claim,  was  sufficient  for  the  identification  of  said  pro- 
perty ;  which  claim,  so  filed  with  said  Recorder,  as  aforesaid,  was  duly 
verified  by  the  oath  of  this  plaintiff,  in  writing  attached  to  said  claim, 
and  filed  therewith,  and  which  claim  and  oath  were  thereupon  duly  re- 
corded by  said  Recorder,  in  a  book  kept  by  him  for  that  purpose. 

That  by  the  premises  aforesaid,  the  said  plaintiff  became  entitled  to 
the  benefit  of,  and  to  have  a  lien  upon,  the  said  building  and  dwelling 
house,  and  the  land  upon  which  the  same  was  erected  and  constructed, 
or  such  a  convenient  part  of  said  land  around  said  building  as  is  re- 
quired for  the  convenient  use  and  occupation  thereof;  and  the  said 
plaintiff  avers  that  the  whole  of  said  land  is  necessary  for  that  pur- 
pose ;  and  the  said  plaintiff  further  claims  that  said  lien,  attached  to 
said  property,  on  the  day  of  1868,  the  day  that  said 

materials  were  so  commenced  by  this  plaintiff  to  be  furnished  for  the 
erection  of  said  building  as  aforesaid. 

The  said  plaintiff  further  shows  to  the  Court,  on  information  and 
belief,  that  the  defendant,  George  Martin,  also  claims  a  lien  upon  said 
property,  for  work  and  labor  performed  by  him  in  the  construction  and 
erection  of  said  building  or  dwelling  house,  to  the  amount  of  fifty 
dollars,  and  that  his  claim  for  that  purpose  has  been  filed  and  recorded 
in  said  Recorder's  Office,  and  remains  unsatisfied  of  record  in  said  office ; 
but  whether  the  same  is  a  good  and  sufficient  claim  and  lien  upon  said 
property,  the  said  plaintiff  has  no  knowledge,  information  or  belief. 

The  said  plaintiff  further  shows,  that  since  the  creation  and  attaching 
of  his, said  plaintiff's, lien,  as  aforesaid,  the  said  defendant,  John  Smith, 
has  made  and  executed  to  the  defendant  Richard  Wilson,  a  mortgage 
on  the  said  premises,  to  secure  the  payment  of  the  sum  of  one  thousand 
dollars  to  said  Wilson,  in  manner  as  in  said  mortgage  specified,  which 
mortgage  is  also  recorded  in  said  Recorder's  Office,  and  remains  un- 
satisfied of  record. 


O  FOKMS. 

The  said  plaintiff  further  shows,  that  the  said  William  Jones,  as  con- 
tractor under  said  John  Smith,  has  also  filed  a  claim  for  lien  on  said 
property,  in  said  Recorder's  Office,  by  which  he  claims  the  sum  of 
two  thousand  dollars  as  due  to  him  from  said  defendant,  John  Smith, 
for  the  erection  of  said  building  under  said  contract. 

Wherefore  the  plaintiff  prays  judgment  of  this  Court,  and  that  it 
may  be  decreed  that  the  said  defendant  Jones  is  indebted  to  him  in  the 
sum  of  five  hundred  dollars  for  the  lumber  and  materials  so  furnished, 
as  aforesaid ;  that  the  said  plaintiff  is  entitled  to  have  a  lien  upon  the 
aforesaid  land  and  premises,  for  the  said  amount,  and  that  said  lien  be 
adjudged  to  attach  at  the  said  time  of  commencing  to  furnish  said 
lumber  and  materials ;  that  the  rights  and  interests  of  the  said  defen- 
dants Jones,  Martin  and  Wilson,  under  their  respective  claims  of  lien 
and  mortgage  respectively,  above  set  forth,  be  ascertained  and  de- 
termined. That  this  Court  adjudge  and  determine  how  much  of  said 
land  is  necessary  for  the  convenient  use  and  occupation  of  said  dwelling 
house,  and  having  so  determined,  then  that  this  Court  order  and  direct 
a  sale  of  said  premises  by  the  Sheriff  of  the  city  and  county  of  San 
Francisco,  in  the  manner  prescribed  by  law,  and  direct  said  Sheriff  to 
make  application  of  the  proceeds  of  said  sale  as  follows,  to  wit : 

First — To  the  payment  of  all  the  costs  of  this  action  and  the  ex- 
penses of  said  sale. 

Second — To  the  payment  of  the  plaintiff  of  his  said  demand,  and 
Ulso  the  payment  of  the  demand,  if  any,  found  due  the  said  defendant, 
George  Martin,  on  his  claim  aforesaid. 

Third — To  the  payment  of  the  said  defendant,  William  Jones,  the 
original  contractor  of  the  amount,  which  may  be  found  due  to  him  on 
his  said  claim. 

Fourth — To  the  payment  of  the  said  Richard  Wilson  on  his  mort- 
gage aforesaid,  and  the  remainder  to  the  defendant,  John  Smith  ;  and 
if  the  amount  realized  from  said  sale  be  not  sufficient  to  pay  said 
demands  in  their  order,  as  aforesaid,  then  that  the  same  be  paid  pro 
rata,  and  in  the  order  and  manner  provided  for  by  an  Act  of  the 
Legislature  of  the  State  of  California,  entitled  "  An  Act  for  Securing 
Liens  of  Mechanics  and  others,"  approved  30th  March,  1868.  That  in 
case  said  proceeds  are  insufficient  to  pay  said  plaintiff  his  said  demand, 
then  that  he  have  execution  against  said  William  Jones  for  the  defici- 
ency, and  that  the  said  defendants  and  all  persons  claiming  by,  through 


FORMS.  71 

or  under  them,  may  be  barred  or  foreclosed  of  all  right,  title,  claim, 
lien,  equity  of  redemption  or  interest  in  and  to  said  premises ;  or  that; 
the  plaintiff  may  have  such  other  further  or  different  relief  in  the 
premises  as  to  this  Court  shall  seem  just,  and  as  shall  be  agreeable  to 
equity  and  good  conscience. 

A  B,  Plaintiff's  Attorney. 

(Then  add  the  usual  verification.  The  above  form  may  not  be  ample 
enough,  being  drawn  only  to  show  the  main  facts  required  to  be  presented 
in  such  a  complaint.  The  pleader  will,  of  course,  frame  the  allegations 
according  to  the  peculiar  circumstances  of  each  case.) 


No.    16. 

Form  of  Summons  on  the  Complaint. 

In  the  District  Court  of  the  Judicial  District  of  the  State  of 

California,  in  and  for  the  city  and  county  of  San  Francisco. 

JOHN  BROWN  ~)       Action  brought  in  the  District   Court  of 

vs.  the  Judicial  District  of  the  State 

of  California,  and  the  Complaint  filed  in 
the  City  and  County  of  San  Francisco, 
in  the  office  of  the  Clerk  of  said  Dis- 


JOHN   SMITH, 
WILLIAM  JONES, 
GEORGB  MARTIN   and 
RICHARD  WILSON. 


trict  Court. 


The  People  of  the  State  of  California  send  Greeting  to  John  Smith, 
William  Jones,  George  Martin  and  Richard  Wilson. 

You  are  hereby  required  to  appear  in  an  action  brought  against  you 
by  the  above  named  plaintiff,  in  the  District  Court  of  the  Judicial 
District  of  the  State  of  California,  in  and  for  the  city  and  county  of 
San  Francisco,  and  to  answer  the  complaint  filed  therein  (a  copy  of 
which  accompanies  this  Summons),  within  ten  days  (exclusive  of  the 
day  of  service),  after  the  service  on  you  of  this  summons — if  served 
within  this  county;  if  served  out  of  this  county,  but  within  this  Judicial 
District,  within  twenty  days ;  or  if  served  out  of  said  District,  then 


72  FOEMS. 

within  forty  days — or  judgment  by  default  will  be  taken  against  you. 

The  said  action  is  brought  to  obtain  a  decree  of  this  Court  for  the 
foreclosure  of  a  certain  lien  described  in  the  complaint,  on  file  in  this 
action,  obtained  by  the  plaintiff  on  a  dwelling  house  and  the  lot  of 
land  on  which  the  same  is  erected,  situate  at  the  southeast  corner  of 
A  and  B  streets,  in  the  city  and  county  of  San  Francisco,  and  which, 
land  and  premises  are  more  particularly  described  in  said  complaint, 
which  lien  is  for  the  sum  of  five  hundred  dollars,  for  lumber  and 
materials  claimed  by  said  plaintiff  to  have  been  furnished  by  him 
in  the  construction  of  said  dwelling  house,  erected  by  the  defendant 
Jones,  under  a  contract  with  the  defendant  Smith,  to  have  the  rights  of 
the  other  incumbrancers  and  lien-holders  settled ;  and  that  the  premises 
on  which  said  liens  and  incumbrances  attach,  may  be  sold,  and  the  pro- 
ceeds applied  to  the  payment  of  said  plaintiff's  said  lien  and  the  other 
liens  and  incumbrances,  as  the  law  directs ;  and  in  case  such  proceeds 
are  not  sufficient  to  pay  the  same,  then  that  they  may  be  distributed 
as  the  law  directs ;  and  that  said  plaintiff  have  execution  against  said 
defendant  Jones  for  any  balance  remaining  due,  and  also  that  the  said 
defendants,  and  all  persons  claiming  by,  through  or  under  them,  may 
be  barred  and  foreclosed  of  all  right,  title,  claim,  lien,  equity  of  redemp- 
tion and  interest  in  and  to  said  premises,  and  for  other  and  further 
relief. 

And  if  you  fail  to  appear  and  answer  the  said  complaint,  as  above 
required,  the  plaintiff  will  take  default  against  you,  and  apply  to  the 
Court  for  the  relief  demanded  in  the  Complaint. 

Given  under  my  hand  and  the  Seal  of  the   District  Court   of  the 
Judicial   District,  this  day  of  in  the  year   of  our 

Lord  one  thousand  eight  hundred  and  sixty. 

Clerk. 
Deputy  Clerk. 


FORMS.  73 

No.     17. 

Affidavit  of  Non  Residence  of  a  Party  to  Procure  Order 
of  Publication. 

In  the  District  Court  of  the  Judicial  District,  in  and 

for  the  city  and  county  of  San  Francisco. 

JOHN   BROWN 

vs. 

JOHN    SMITH, 
WILLIAM  JONES, 
GEORGE    MARTIN  and 
RICHARD  WILSON. 

City  and  County  of  San  Francisco,  ss : 

John  Brown  being  duly  sworn,  deposes  and  says :  that  he  is  the 
plaintiff  in  the  above  entitled  action.  That  said  action  is  brought  by 
this  deponent  to  foreclose  a  lien  which  he  claims  in  his  favor,  on  certain 
real  estate,  situate  in  the  city  and  county  of  San  Francisco,  belonging 
to  the  defendant,  John  Smith,  consisting  of  a  lot  of  land  in  said  city, 
with  a  dwelling  house  lately  erected  thereon  by  the  defendant,  William 
Jones,  by  virtue  of  a  contract  entered  into  between  said  Smith  and 
Jones  for  such  erection.  That  said  lot  of  land,  dwelling  house  and 
premises  are  more  particularly  described  in  the  Complaint  on  file  in 
this  action,  to  which  this  deponent  refers  the  Court.  That  the  claim  of 
this  deponent  is  for  the  sum  of  five  hundred  dollars,  for  lumber  and 
materials  furnished  said  Jones,  by  deponent,  at  said  Jones'  request,  and 
used  by  him  in  the  construction  of  said  building ;  and  which  sum  re- 
maining unpaid,  this  deponent  duly  filed  a  claim  of  lien  on  said  premi- 
ses in  the  Recorder's  Office  of  said  city  and  county,  according  to  and 
in  pursuance  of  the  statute  in  such  case  made  and  provided  ;  and  for  the 
obtaining  satisfaction  out  of  said  property  for  said  demand,  so  secured 
by  said  lien,  this  action  is  brought.  That  said  defendant,  George 
Martin,  is  made  a  party  defendant,  and  is  a  necessary  party  defendant, 
because,  as  deponent  avers,  said  George  Martin  also  performed  work 
and  labor  on  and  in  the  construction  of  said  building  ;  and  for  his  de- 
mand for  the  amount  thereof,  he  filed  a  claim  for  a  lien  on  said  pro. 
perty  in  said  Recorder's  Office,  and  same  remains  of  record  in  said  office 
unsatisfied  ;  and  deponent  is  informed  and  believes  is  in  fact  unsatisfied, 


74  FORMS. 

and  that  by  section  ten  of  the  Act  of  the  Legislature  of  California, 
entitled  "  An  Act  for  Securing  Liens  of  Mechanics  and  others,"  appro- 
ved 30th  March,  1868,  the  said  George  Martin  is  a  necessary  party  to 
this  action. 

Deponent  further  says  that  he  is  personally  acquainted   with  said 
George  Martin,  and  that  up  to  the  day  of  the  present  month  the 

said  Martin  resided,  and  for  years  previously  had  resided,  in  the  said 
city  and  county  of  San  Francisco.  That  on  the  day  of  1868, 
and  before  the  commencement  of  this  action,  the  said  George  Martin 
removed  from  this  State  and  went  with  his  family  to  reside  at  Virginia 
City,  in  the  State  of  Nevada,  where  said  Martin  now  resides.  That 
deponent  heard  from  said  Martin  by  letter,  within  the  last  few  days, 
and  knows  that  he  is  now  residing  at  Virginia  City  aforesaid. 

JOHN  BROWN. 
Sworn  to  before  me    ) 
this        day  of       1868.  f 
[L.  S.]         C  D,  Notary  Public. 


No.    18. 

Form  of  Order  on   Foregoing  Affidavit. 

[Title  of  the  Cause.'] 

On  reading  and  riling  affidavit  of  John  Brown,  the  plaintiff  in  the 
above  entitled  action,  by  which  it  appears  to  the  satisfaction  of  the  un- 
dersigned, Judge  of  said  District  Court,  that  the  above  named  defen- 
dant, George  Martin,  is  a  necessary  and  proper  party  defendant  to  the 
above  entitled  action,  and  that  personal  service  of  the  summons  and 
complaint  in  this  action  cannot  be  made  on  said  George  Martin,  for 
the  reason  that  said  Martin  is  not  within  this  State,  but  resides  at 
Virginia  City,  in  the  State  of  Nevada.  On  motion  of  Mr.  A  B,  of 
counsel  for  said  plaintiff,  it  is  ordered  that  service  be  made  on  said 
Martin,  by  the  publication  of  the  summons  in  said  action.  That  said 
publication  be  made  in  the  newspaper  published  and  printed  in  the  city 


FOEMS.  75 

and  county  of  San  Francisco,  called  "  The  Daily  ,"  the  pub- 

lication in  which  is  deemed,  by  the  undersigned,  most  likely  to  give 
notice  to  the  said  defendant,  Martin,  and  that  said  publication  be  once 
a  week  for  four  successive  weeks.  It  is  also  hereby  ordered  and  di- 
rected, that  a  copy  of  said  summons  and  complaint  in  this  action,  be 
forthwith  deposited  in  the  postoffice,  in  the  city  and  county  of  San 
Francisco,  enclosed  in  a  proper  envelope,  with  the  United  States  post- 
age chargeable  thereon,  prepaid  and  addressed  to  said  George  Martin, 
Virginia  City,  State  of  Nevada,  his  present  place  of  residence. 

C  D,  District  Judge. 
Dated   San  Francisco, 
day  of          1868. 


No.     19. 

Order  Appointing  Attorney  to  Defend  for  Absent  Defendant. 

[Title  of  the  Cause.'] 

It  appearing  to  the  Court  that,  in  pursuance  of  an  order  heretofore 
made  in  this  action,  for  the  publication  of  the  summons  in  this  action, 
said  summons  has  been  duly  published,  as  by  the  Court  in  said  order 
directed,  and  also  a  copy  of  said  summons  and  of  the  complaint  in  this 
action,  deposited  in  the  postoffice,  directed  to  the  non-resident  defen- 
dant, George  Martin,  at  his  residence,  Virginia  City,  State  of  Nevada, 
in  manner  as  directed  by  said  order;  and  that  on  the  proper  affidavit, 
now  on  file,  of  these  facts,  the  said  George  Martin's  default,  for  not 
answering,  has  been  duly  entered,  and  that  said  Martin  has  not  appeared 
in  this  action,  the  Court  hereby  appoints  R  C,  Esq.,  an  attorney  and 
counsel  of  this  Court,  to  appear  for  the  said  George  Martin  in  this 
action,  and  conduct  the  proceedings  on  his  part  therein. 


76  FORMS. 

No.     20. 

Notice  of  Lis  Pendens   in   this    Action    Under  the    27th 
Section  of  the    Practice  Act. 

In  the  District  Court  of  the  Judicial  District  of  the  State  of 

California,  in  and  for  the  city  and  county  of  San  Francisco. 
JOHN    BROWN 

vs. 

JOHN    SMITH, 
WILLIAM  JONES, 
GEORGE  MARTIN   and 
RICHARD  WILSON. 
To  all  whom  it  may  concern : 

Take  notice  that  the  above  entitled  action  is  an  action  com- 
menced in  the  District  Court  of  the  Judicial  District  of  the 
State  of  California,  in  and  for  the  city  and  county  of  San  Francisco, 
and  the  names  of  the  parties  thereto,  are  correctly  above  set  forth  ;  that 
the  object  of  the  action  is  to  foreclose  a  lien  obtained  by  the  plaintiff 
therein,  on  certain  premises  hereinafter  described,  for  certain  materials 
furnished  by  the  said  plaintiff,  in  the  construction  of  a  building  or 
dwelling  house  on  the  premises  after  mentioned,  and  the  claim  for 
which  lien  is  duly  recorded  in  the  office  of  the  Recorder  of  said  city 
and  county  of  San  Francisco,  and  to  have  said  premises  sold  to  satisfy 
said  lien,  and  any  other  liens  or  incumbrances  held  by  any  of  the  de- 
fendants on  said  premises.  That  the  following  is  a  description  of  the 
property  affected  by  said  action,  and  which  is  therein  claimed  to  be 
sold  to  satisfy  said  lien,  viz :  All  that  certain  piece  or  parcel  of  land 
situate,  lying  and  being  in  said  city  and  county  of  San  Francisco, 
bounded  and  described  as  follows  (here  insert  description),  with  the 
buildings  erected  thereon,  and  the  appurtenances  thereunto  belonging. 

A  B,  Attorney  for  said  Plaintiff. 

Dated   San  Francisco, 
this         day    of         1868. 


FORMS.  77 

No.     21. 

Decree    in   the  Cause  Setting  Forth  the   Rights  of  the 
Respective  I  Parties. 

JOHN   BROWN 
vs. 

JOHN    SMITH, 

And  Others. 

This  cause  having  come  on  to  be  heard  on  the  pleadings  and  proofs 
in  this  action,  and  after  hearing  Mr.  A  B,  of  counsel  for  plaintiff,  Mr. 
C  D,  of  counsel  for  the  defendant,  John  Smith,  Mr.  E  F,  of  counsel 
for  the  defendants,  William  Jones  and  Richard  Wilson,  and  Mr.  G  H, 
counsel  appointed  by  the  Court  to  appear  for  the  absent  defendant, 
George  Martin,  and  conduct  the  proceedings  on  his  part ;  and  the 
Court  having  maturely  considered  the  proofs  and  allegations  of  the 
respective  parties,  does  order,  adjudge,  decree  and  determine  as  fol- 
lows, viz :  That  the  said  plaintiff,  by  reason  of  the  demand  in  his 
complaint,  in  this  action  set  forth,  for  materials  furnished  by  him  in  the 
erection  and  construction  of  the  building  on  the  land  of  the  defendant, 
John  Smith,  in  said  complaint,  and  in  this  decree  hereinafter  described, 
and  his  filing  and  recording  of  his  claim,  as  in  said  complaint  set  forth, 
acquired  a  lien  on  said  land  and  premises  on  the  first  day  of  July, 
1868,  and  the  Court  adjudges  that  there  is  due  to  him,  from  said  de. 
fendant,  William  Jones,  on  his  said  claim,  the  sum  of  five  hundred 
dollars.  The  Court  further  adjudges  to  the  said  plaintiff  the  costs  of 
his  prosecuting  this  action,  and  allows  as  a  part  of  said  costs  the  sum 
of  ten  dollars,  paid  by  him  for  filing  and  recording  his  said  lien,  and 
also  the  sum  of  three  hundred  dollars,  as  a  reasonable  amount  for  the 
fees  of  his  attorney  and  counsel  in  prosecuting  this  action,  which  said 
two  sums,  for  expenses  and  fees,  together  with  fifty  dollars,  as  taxed 
and  settled  by  the  clerk  of  this  Court,  for  said  plaintiff's  costs  and  dis- 
bursements in  this  action,  amount  together  to  the  sum  of  three  hun- 
dred and  sixty  dollars,  and  making  together,  with  said  sum  of  five  hun- 
dred dollars,  so  found  due  on  his  said  claim,  the  sum  of  eight  hundred 
and  sixty  dollars,  for  which  sum  judgment  is  awarded  in  favor  of  said 
plaintiff  against  said  defendant,  William  Jones  ;  and  also  that  the  said 
plaintiff  have  satisfaction  therefor,  out  of  the  property,  on  which  he 
so,  as  aforesaid,  acquired  a  lien,  and  hereinafter  described. 


78  FOKMS. 

The  Court  further  adjudges  and  decrees,  that  there  is  due  to  the  said 
defendant,  George  Martin,  from  the  said  defendant,  William  Jones,  the 
sum  of  fifty  dollars  on  his  claim  for  a  lien,  set  forth  in  the  complaint  in 
this  action,  for  work  and  labor  performed  by  him  in  the  construction 
of  said  building,  at  the  instance  and  request  of  said  Jones ;  and  that  by 
reason  of  his  filing  and  recording  said  claim,  he  acquired  a  lien  on  said 
building  and  premises  after  mentioned,  on  the  third  day  of  July,  1868, 
for  which  sum  of  fifty  dollars,  with  costs,  judgment  is  hereby  ordered 
in  favor  of  said  George  Martin,  against  said  William  Jones,  with  his 
costs  by  him  incurred  in  this  action;  and  the  Court  allows,  as  a  part  of 
said  costs,  the  sum  ©f  five  dollars,  paid  by  him,  said  Martin,  for  filing 
and  recording  his  said  lien,  and  also  the  sum  of  one  hundred  dollars  as 
a  reasonable  amount  for  the  fees  of  the  attorney  and  counsel  appointed 
by  the  Court  to  conduct  the  proceedings  in  this  action,  on  the  part  of 
the  said  George  Martin,  which  several  items,  for  fees  and  expenses, 
together  with  the  sum  of  five  dollars  for  said  Martin's  costs  and  dis- 
bursements, as  taxed  and  settled  by  the  Clerk  of  this  Court,  amount  to 
the  sum  of  one  hundred  and  ten  dollars,  and  making  together,  with 
the  sum  of  fifty  dollars  so  adjudged  to  be  due  to  him  on  his  said  claim, 
the  sum  of  one  hundred  and  sixty  dollars. 

The  Court  further  adjudges  and  decrees  to  be  due  from  the  said 
defendant,  John  Smith,  to  the  said  defendant,  William  Jones,  on 
the  contract  for  erecting  said  building  on  said  premises,  set  forth 
in  the  answer  of  said  William  Jones,  in  this  action,  the  sum  of 
two  thousand  dollars;  and  that  the  same  became  a  lien  on  said 
building  and  premises  on  the  25th  day  of  June,  1868,  out  of 
which  said  sum,  as  a  lien  on  said  premises,  is  to  be  deducted  the 
sum  of  five  hundred  and  fifty  dollars,  being  the  amount  of  the  princi- 
pal of  the  respective  claims  of  said  plaintiff  and  said  defendant, 
George  Martin,  leaving,  after  such  application,  the  sum  of  one  thousand 
four  hundred  and  fifty  dollars  due  from  said  John  Smith  to  said  Wil- 
liam Jones,  for  which  judgment  is  awarded  in  favor  of  said  defendant, 
William  Jones,  against  said  defendant,  John  Smith,  with  his  costs  by 
him  incurred  in  this  action ;  and  the  Court  hereby  allows,  as  a  part  of 
said  costs,  the  sum  of  five  dollars,  paid  by  him  for  filing  and  recording 
his  said  lien  in  his  said  answer  set  forth  ;  and  also  the  sum  of  one  hun- 
dred dollars,  as  a  reasonable  amount  for  the  fees  of  his  attorney  and 
counsel,  in  his  defending  this  action  and  establishing  his  said  claim 


FOKMS.  79 

therein,  which  said  several  sums,  for  fees  and  expenses,  together  with 
the  sum  of  ten  dollars  for  his  costs  and  disbursements  herein,  as  taxed 
and  settled  by  the  Clerk  of  this  Court,  amount  to  the  sum  of  one 
hundred  and  fifteen  dollars,  making  together,  with  the  sum  of  one 
thousand  four  hundred  and  fifty  dollars  adjudged  to  be  due  to  him  on 
his  said  claim,  the  sum  of  one  thousand  five  hundred  and  sixty-five 
dollars  ;  and  it  is  adjudged  and  decreed  that  the  said  defendant,  Wil- 
liam Jones,  have  satisfaction  thereof,  out  of  the  property  hereinafter 
described. 

It  is  further  ordered,  adjudged  and  decreed,  that  there  is  due  from 
the  defendant,  John  Smith,  to  the  defendant,  Richard  Wilson,  on  the 
promissory  note  set  forth  and  described  in  the  answer  of  said  Richard 
Wilson,  the  sum  of  one  thousand  dollars,  principal,  and  thirty -five  dol- 
lars interest,  from  the  date  of  said  promissory  note  to  the  date  of  this 
decree,  making,  together,  the  sum  of  one  thousand  and  thirty-five  dol- 
lars, for  which  sum,  with  interest  from  this  date,  judgment  is  hereby 
awarded  against  the  said  John  Smith,  in  favor  of  said  defendant, 
Richard  Wilson,  together  with  the  sum  of  ten  dollars  for  his  costs  and 
disbursements  in  this  action,  as  taxed  and  settled  by  the  Clerk  of  this 
Court.  It  is  further  adjudged  that  the  said  sum,  for  which  judgment 
is  so  rendered,  is  secured  by  the  mortgage  on  the  premises  set  forth 
and  described  in  the  answer  of  said  defendant,  Richard  Wilson,  in  this 
action,  but  that  the  mortgage,  so  held  by  said  Richard  Wilson,  is  sub- 
sequent as  an  incumbrance  and  lien  on  said  premises  to  the  several 
liens  of  the  plaintiff,  John  Brown,  and  of  the  defendants,  William  Jones 
and  George  Martin,  above  set  forth. 

It  is  further  ordered,  adjudged  and  decreed,  that  the  whole  of 
the  piece  or  parcel  of  land  hereinafter  described,  is  required  and  is  re- 
quisite and  necessary  for  the  convenient  use  and  occupation  of  the 
dwelling  house  erected  thereon  by  the  said  William  Jones,  under  his 
contract  with  the  defendant,  John  Smith,  in  the  pleadings  in  this  action 
set  forth,  and  in  the  erection  of  which  the  demands  of  said  John 
Brown,  William  Jones  and  George  Martin,  adjudged  by  this  decree  to 
liens  on  said  property,  arose. 

It  is  further  adjudged  and  decreed,  that  the  said  premises  described 
in  the  complaint  in  this  action,  and  as  hereinafter  set  forth,  be  sold  at 
public  auction  in  the  city  and  county  of  San  Francisco, -by  the  Sheriff 
of  said  city  and  county  ;  that  the  said  Sheriff  give  public  notice  of  the 


80  FOEMS. 

time  and  place  of  said  sale,  according  to  law  and  the  practice  of  this 
Court ;  that  either  or  any  of  the  parties  to  this  action  may  purchase 
at  said  sale  ;  that  out  of  the  moneys  arising  from  such  sale,  after  de- 
ducting his  fees  and  expenses  on  such  sale,  and  any  liens  upon  said 
premises  so  sold  at  the  time  of  such  sale  for  taxes  or  assessments,  the 
said  Sheriff  pay — 

First — The  said  John  Brown  and  the  said  George  Martin,  or  their 
respective  attorneys,  the  sums  above  found  due  to  them  respectively, 
together  with  their  respective  costs,  disbursements  and  attorneys'  fees 
to  them  above  awarded  respectively ;  and  if  the  proceeds  be  insufficient 
to  pay  them  in  full  their  said  respective  demands,  then  that  he,  said 
Sheriff,  pay  them  pro  rata  according  to  their  said  respective  demands. 

Second — If  said  sum  is  more  than  sufficient  to  pay  the  said  demands 
of  said  John  Brown  and  George  Martin,  then  that  out  of  the  remainder, 
said  Sheriff  pay  the  said  defendant,  William  Jones,  the  sum  above 
found  due  to  him,  together  with  his  costs,  disbursements  and  attorneys' 
fees  above  awarded. 

Third — That  out  of  the  remainder,  if  any,  he  shall  pay  the  said  de- 
fendant, Richard  Wilson,  the  sum  above  found  due  to  him  on  his  said 
promissory  note  and  mortgage,  with  the  legal  interest  thereon  from 
this  date,  together  with  his  costs  and  disbursements  in  this  action  above 
awarded. 

That  he,  said  Sheriff,  take  receipts  for  said  sums  respectively  from  said 
parties,  or  their  respective  attorneys,  and  the  surplus  of  said  purchase 
money,  if  any,  after  said  payments,  he  deposit  with  the  Clerk  of  this 
Court,  to  be  drawn  out  only  on  the  order  of  this  Court,  and  as  it  may 
direct.  That  if  the  proceeds  of  said  sale  be  insufficient  to  pay  all  or 
either  of  said  parties  the  amounts  above  directed  to  be  paid  and  in  the 
order  above  directed,  that  said  Sheriff  then  report  said  deficiencies 
respectively,  so  that  the  said  parties  may  have  execution  for  such 
deficiencies  respectively,  according  to  the  statute  in  such  case  made 
and  provided. 

The  following  is  a  description  of  the  premises  so  ordered  to  be  sold 
to  satisfy  said  demands  and  claims  as  hereinbefore  mentioned.  (Here 
instrt  a  full  description  of  the  property.) 


FORMS.  81 

No.     22. 

Return  of  Sheriff  upon  the  Writ  of  Execution  or  Order  of 
Sale  in  Same  Cause. 

In  pursuance  of.  the   preceding  writ   (or  order)  I,  the   undersigned 
Sheriff  of  the  city  and  county  of  San  Francisco,  do  certify  and  return, 
that  I  advertised  the  premises  therein    described   to  be  sold  by  me  at 
the  Sheriff's  office,  in   the  City  Hall,  in  said  city  and  county,  on  the 
day  of  in  the  year  1868.     That  previous  to  said  sale,  I 

caused  notice  thereof  to  be  publicly  advertised  as  follows,  viz :  By 
causing  a  printed  notice  thereof,  particularly  describing  said  property, 
to  be  posted  in  three  public  places,  for  twenty  days  successively,  in  the 
city  and  county  of  San  Francisco,  where  said  property  is  situated,  and 
where  it  was  to  be  sold,  and  by  causing  a  copy  thereof  to  be  published 
once  a  week  for  the  same  period,  in  a  public  newspaper  published  in 
said  city  and  county. 

And  I  further  certify  and  return,  that  on  said  day  of  in 

the  year  1868,  the  day  on  which  said  premises  were  so  advertised  to 
be  sold,  as  aforesaid,  I  attended  at  the  time  and  place  fixed  for  said 
sale,  and  exposed  said  premises  for  sale  at  public  auction,  to  the  highest 
bidder,  and  the  said  premises  were  then  and  there  fairly  struck  off  to 
A  B,  at  the  sum  of  two  thousand  two  hundred  dollars,  he  being  the 
highest  bidder  therefor,  and  that  being  the  highest  sum  bid  for  the 
same. 

I  further  certify  and  return,  that  I  gave  to  said  purchaser  a  certificate 
in  writing  of  said  sale,  containing  a  particular  description  of  the  said 
property  so  sold,  the  price  bid  for  the  same,  and  that  it  was  subject  to 
redemption  according  to  law — a  duplicate  of  which  certificate  was  by 
me  filed  in  the  office  of  the  Recorder  of  said  city  and  county. 

I  further  certify  and  return  that  I  have  disposed  of  and  paid  out  said 
sum  of  two  thousand  two  hundred  dollars,  as  follows,  viz : 

I  have  retained  in  my  hands,  being  the  amount  of  my  fees,  commis- 
sions and  disbursements  on  said  sale,  the  sum  of  one  hundred  and 
five  dollars, $105.00 

I  have  paid  to  the  attorney  of  the  plaintiff,  John  Brown, 
the  sum  of  eight  hundred  and  sixty  dollars,  being  the 
amount  awarded  to  him  by  the  Court,  in  the  decree  in 
this  action,  for  his  claim,  attorney's  fees,  costs,  expenses 


82  FOEMS. 

and   disbursements, 860.00 

I  have  paid  to  the  attorney  of  the  defendant,  George  Martin, 
the  sum  of  one  hundred  and  sixty  dollars,  being  the 
amount  awarded  to  him  by  the  Court  in  said  decree,  for 
his  claim,  attorneys'  fees,  costs,  expenses  and  disburse- 
ments,    160.00 

That  I  have  paid  the  balance  thereof,  being  one  thousand 

and   seventy-five  dollars, 1075.00 


$2,200.00 

to  the  attorney  of  the  defendant,  William  Jones,  to  apply  on  his 
claim  of  one  thousand  five  hundred  and  sixty-five  dollars,  awarded 
to  him  by  said  decree,  for  his  claim,  attorneys'  fees,  costs,  expenses  and 
disbursements,  leaving  the  sum  of  four  hundred  and  ninety  dollars  of 
his  said  claim  unsatisfied,  and  leaving  the  whole  of  the  amount,  in- 
terest and  costs,  adjudged  to  be  due  by  said  decree,  from  the  defendant, 
John  Smith,  to  the  defendant,  Richard  Wilson,  unsatisfied. 

That  I  have  taken  receipts  for  the  said  respective  payments,  which 
I  have  hereunto  annexed. 

I  further  certify  and  return,  that  the  premises  so  sold  by  me,  as  afore- 
said, and  as  described  in  said  certificate  of  sale,  were  as  follows,  viz : 
(Here  insert  description). 

Dated,  etc.  P  W,  Sharif. 


No.     23. 

Execution  for  the  Deficiency  in  Favor  of  Contractor. 

The  People  of  the  State  of  California  to  the  Sheriff  of  the  City  and 
County  of  San  Francisco,  greeting  : 

Whereas,  on  the  day  ©f  in  the  year  one  thousand  eight 

hundred  and  sixty-eight,  by  a  certain  decree,  made  in  the  Dis- 

trict Court  of  the  Judicial  District,  in  and  for  the  city  and 

county  of  San  Francisco,  in  a  certain  action  wherein  John  Brown  is 
plaintiff  and  John  Smith,  William  Jones  and  others  are  defendants,  it 


OJT 

FOEMS.  83 

was,  among  other  things,  adjudged,  that  all  and  singular  certain  real 
estate  and  premises  mentioned  and  set  forth  in  the  complaint,  in  said 
action,  should  be  sold  at  public  auction,  by  the  Sheriff  of  said  city  and 
county ;  and  that  said  Sheriff,  out  of  the  proceeds  of  said  sale,  retain 
his  fees,  disbursements  and  commissfons  on  said  sale,  and  pay,  amongst 
other  demands  and  claims  specified  in  said  decree  to  the  said  William 
Jones,  the  amount  adjudged  by  said  decree  to  be  due  by  said  John 
Smith  to  him,  for  a  certain  claim  he  had  against  said  Smith,  secured 
by  a  lien  on  said  premises,  or  so  much  thereof  as  the  purchase  money 
of  said  premises  would  pay  upon  the  same ;  and  that  if  the  money 
arising  from  said  sale  should,  after  paying  certain  other  claims  in  said 
decree  mentioned,  be  insufficient  to  pay  the  amount  found  due  by  said 
decree  from  said  Smith  to  said  Jones,  the  said  Sheriff  should  specify 
the  amount  of  the  deficiency  in  his  return,  and  the  plaintiff  have  execu- 
tion therefor ;  and  whereas,  it  appears  from  the  return  of  the  said 
Sheriff,  that  the  amount  of  the  deficiency  is  four  hundred  and  ninety 
dollars,  and  which,  after  the  due  application  of  said  proceeds,  remains 
due  from  said  Smith  to  said  Jones  on  the  said  claim  of  said  Jones, 
therefore,  we  command  you  that  you  satisfy  the  said  balance  of  the 
said  claim  of  said  Jones,  as  adjudged  by  said  decree,  out  of  the 
personal  property  of  the  said  John  Smith,  within  your  county;  or  if 
sufficient  personal  property  cannot  be  found,  then  out  of  the  real  pro- 
perty in  your  county,  belonging  to  the  said  John  Smith,  on  the 
day  of  one  thousand  eight  hundred  and  sixty  eight,  the  day  on 

which  the  said  claim,  as  a  judgment,  was  docketed  in  your  county,  or 
at  any  time  thereafter,  in  whose  hands  soever  the  same  may  be,  and  re- 
turn the  execution  within  days  after  its  receipt  by  you  to  the 
Clerk  of  this  Court. 

Witness :     Hon.   ABC,  Judge  of  our  said  District  Cottrt,  of  the 
Judicial  District,  in   and  for   said   city   and   county   of   San 
Francisco,  this  day  of  one  thousand  eight  hundred    and 

sixty-eight. 

D  E  F,  (ll<rk  of  said  Court. 


84  FORMS. 

No.     24. 

Order  of  Reference  where  there   are  Various   Claims  of 
Different   Classes. 

[Title  of  the    Cause.'] 

This  cause  being  at  issue  on  the  complaint  of  the  plaintiff,  and  the 
answers  of  the  different  defendants  therein,  on  motion  of  Mr.  A  B,  of 
counsel  for  said  plaintiff,  all  the  defendants  appearing  by  their  respec- 
tive counsel  and  assenting  thereto,  it  is  ordered  that  this  action  be  re- 
ferred to  Mr.  C  D,  an  attorney  and  counsel  of  this  Court,  as  Referee,  to 
take  the  proofs  of  the  respective  parties  hereto,  and  report  the  same  to 
the  Court ;  that  he  also  report  for  the  consideration'  of  this  Court,  a 
decree  founded  on  the  testimony  so  taken  before  him,  showing  the 
amount,  if  any,  due  to  the  plaintiff  from  the  defendant,  E  F,  and  also 
the  respective  amounts  due  to  the  other  defendants,  respectively,  on 
the  various  claims  set  up  by  them  in  their  respective  answers  in  this 
action,  the  time  when  their  respective  claims  became  liens  on  the  real 
estate  and  premises  described  in  the  plaintiff 's  complaint,  and  the  order 
of  preference  to  which  they  are  respectively  entitled  in  the  payment  of 
their  said  respective  claims ;  also  showing  what  space  of  the  real 
estate  or  land,  of  defendant  E  F,  around  the  building  or  superstructure, 
in  said  complaint  mentioned,  is  required  for  the  convenient  use  and 
occupation  thereof,  and  that  he  report  to  this  Court  with  all  convenient 
si 


No.    25. 

Demurrer  to  a  Complaint  for  Want  of  Parties  Under  5th 
Subdivision    of   Section   10. 

[Title  of  the   Cause.'] 

And  now  comes  the  defendant,  A  B,  by  C  D,  his  attorney,  and 
demurs  to  the  complaint  of  the  plaintiff  in  this  action,  and  specifies  the 
following  as  the  grounds  of  said  demurrer,  namely  : 


FORMS.  85 

there  is  a  defect  of  parties  defendant  in  this  action,  in 
this,  viz :  That  it  appears  by  said  complaint,  that  one  E  F  is  personally 
liable  for  the  claim  of  the  plaintiff  in  this  action,  and  that  one  G  H  has 
a  lien  on  the  real  estate  and  premises  in  said  complaint  described  for 
certain  materials  furnished  by  him  in  the  erection  of  the  superstructure 
on  said  premises,  and  that  neither  said  E  F  nor  said  G  H  are  made 
parties  to  this  action. 

Second — That  said  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action. 

L  N,  Defendant's  Attorney. 


No.     26. 

Averments  in  Answer  of  Want  of  Parties  Under  Sections 
44  and  45  of  Practice  Act. 

And  the  said  A  B,  defendant,  farther  answering,  says  that  there  is  a 
defect  of  parties  defendant  in  this  action  in  this  :  That  at  the  com- 
mencement of  this  action,  one  C  D  had  a  claim  for  materials  furnished 
by  him  in  the  erection  of  the  building  or  superstructure  in  the  plain- 
tiff's complaint  described,  and  which  claim  remains  wholly  unsatisfied ; 
and  that  said  C  D,  before  the  commencement  of  this  action,  had  filed 
and  recorded  a  claim  for  a  lien  on  said  premises,  in  the  Recorder's 
office  of  said  city  and  county  of  San  Francisco,  in  pursuance  of  the 
Act  entitled  "  An  Act  for  Securing  Liens  of  Mechanics  and  others," 
approved  30th  March,  1868. 


No.     27. 

Petition  of  a  Lienholder  for  Intervention  Under  Section 
659   of  Practice  Act. 

[Title  of  the    Cause.'] 

To  the  District  Court  of  the  Judicial  District,  in  and  for  the 

City  and  County  of  San  Francisco. 


86  FO  RMS. 

The  petition  of  A  B  showeth :  That  the  petitioner,  the  said  A  B, 
heretofore,  on  the  day  of  in  the  year  1868,  and  on  divers 

and  sundry  days  between  that  day  and  the  day  of  in  said 

year  1868,  furnished  and  delivered  to  C  D,  one  of  the  defendants  in 
the  above  entitled  action,  and  at  his  special  instance  and  request,  certain 
articles  of  lumber  and  other  materials,  to  be  used,  and  which  were 
used,  by  him  in  the  building  or  superstructure  described  in  the  plain- 
tiff's complaint  in  this  action ;  that  the  value  of  the  said  materials  so 
furnished  by  this  petitioner,  as  aforesaid,  was  five  hundred  dollars,  no 
part  or  portion  of  which  has  been  paid  to  this  petitioner,  but  the  same 
remains  wholly  due  and  unpaid.  That  within  thirty  days  after  the 
completion  of  said  building  or  superstructure,  this  petitioner  duly  filed 
and  recorded  in  the  office  of  the  Recorder  of  the  city  and  county  of 
San  Francisco,  a  claim  in  writing,  containing  a  true  statement  of  his 
said  demand,  after  deducting  all  just  credits  and  offsets,  with  the  name 
of  the  owner  of  said  building  or  superstructure  and  premises  described 
in  said  complaint ;  and  also  the  name  of  the  said  defendant,  C  D,  as 
the  person  by  whom  this  petitioner  was  employed  to  furnish  said  lum- 
ber and  materials,  and  a  description  of  the  property  sought  by  the 
petitioner  to  be  charged  with  a  lien  for  said  lumber  and  materials  so 
furnished  by  the  petitioner,  which  description  was  sufficient  for  the 
identification  thereof,  and  which  petitioner  avers  is  the  same  property 
described  in  the  complaint  in  this  action,  and  on  which  the  plaintiff  in 
this  action  claims  a  lien  for  his  demand  in  said  complaint  set  forth, 
which  claim  so  caused  to  be  filed  and  recorded  in  said  Recorder's  office 
by  this  petitioner,  was  duly  verified  by  the  oath,  in  writing,  of  this 
petitioner,  annexed  to  said  claim. 

That  on  the  grounds  above  set  forth,  your  petitioner  claims  to  inter- 
vene in  this  action  and  to  become  a  plaintiff  therein,  and  claims  judg- 
ment therein  against  said  defendant,  C  D,  for  said  sum  of  five  hundred 
dollars,  and  for  the  costs  of  filing  and  recording  said  lien,  his  attorney's 
fees  and  his  costs  and  disbursements  in  this  action ;  that  said  demand 
be  declared  a  lien  upon  said  premises;  that  said  petitioner  have  satisfac- 
tion thereout  of  his  said  demand,  and  if  insufficient  for  that  purpose, 
then  that  he  have  execution  agaiost  said  C  D  for  the  deficiency,  or  for 
such  other  or  farther  or  different  relief  as  he  may  be  entitled  to  under 
the  facts  of  this  case,  as  they  shall  appear,  and  as  may  be  agreeable  to 


FORMS.  87 

equity  and  good  conscience.     And  your  petitioner,  etc. 

E  F,   Attorney  for  Petitioner. 
(Here  will  follow  an  affidavit  of  verification  in  the  usual  form). 


No.     28. 

Notice  to  Contractor  by  Owner  Under  llth  Section. 
To  Mr.  A   B— 

SIR  : — You  will  please  to  take  notice  that  an  action  has  been  com- 
menced against  me  in  the  District  Court  of  the  Judicial 
District,  of  this  State,  in  and  for  the  city  and  county  of  San  Francisco, 
by  C  D,  as  plaintiff;  and  in  his  complaint  therein,  said  C  D  claims  a 
lien  on  the  building  which  you  have,  under  the  contract  heretofore 
entered  into  between  us,  been  constructing  for  me,  situate  on  F  street, 
in  said  city,  for  materials  furnished  by  him,  and  for  work  and  labor 
done  by  him  for  you  in  the  construction  of  said  building,  to  the  amount 
of  five  hundred  dollars.  I  hereby  call  upon  you  to  defend  said  action, 
at  your  own  expense,  and  notify  you  that  I  will  withhold  payment  o\ 
any  amount  to  become  due  under  our  said  contract  during  the  pendency 
of  said  action  ;  and  should  judgment  be  obtained  against  me,  upon  the 
lien  claimed  in  said  action,  by  said  C  D,  I  will  deduct  the  same  from 
any  amount  to  become  due  to  you  on  said  contract,  and  all  costs  and 
expenses  which  I  may  incur  in  defending  said  action,  should  vou  fail 
to  do  so  on  my  behalf. 

Dated,  etc.  E  F. 


88  FORMS. 

No.    29. 

Clause  in  a  Decree  where  Contractor  is  made  Personally 
Liable  to  the  Owner  for  the  Excess  under  Section  II. 

[Title  of  the  Cause]. 

(After  the  adjudications  on  the  claims  of  the  different  lienholders  who 
are  parties  to  the  action,  then  add):  And  whereas,  it  appears  to  this 
Court  from  the  proofs  in  this  action,  that  the  defendant,  A  B,  entered 
into  the  contract,  in  writing,  with  the  defendant,  E  F,  to  construct  the 
building  on  which  the  foregoing  liens  are  declared  as  in  the  complaint 
and  pleadings  in  this  action  set  forth  ;  and  that  the  defendant,  E  F, 
was,  by  said  agreement,  to  pay  the  said  A  B,  for  such  construction, 
according  to  the  terms  of  said  agreement,  the  sum  of  ten  thousand 
dollars.  And  whereas,  it  further  appears  that  the  said  E  F  has  paid 
the  said  A  B,  on  said  contract,  for  such  construction,  the  sum  of  eight 
thousand  dollars.  And  whereas,  the  different  liens  of  the  plaintiff  in 
this  action,  and  of  the  defendants  Gr  H  and  O  P,  as  established  by 
this  decree,  amount  together  to  the  sum  of  five  thousand  dollars,  it  is 
adjudged  and  decreed  that  upon  the  payment,  by  said  E  F,  of  the 
said  claims  of  said  plaintiff  and  of  said  defendants,  G  H  and  0  P, 
as  herein  above  in  this  decree  settled  and  adjudged,  or  on  the  satisfac- 
tion thereof  by  the  sale  of  said  property,  as  hereinbefore  directed,  the 
said  E  F  will  be  entitled  to  a  judgment  in  this  action  against  the  said 
A  B,  for  the  sum  of  three  thousand  dollars,  the  amount  of  the  excess 
of  said  payments  and  claims  over  said  contract  price;  and  that  at  any 
time  hereafter,  on  establishing,  to  the  satisfaction  of  this  Court,  the 
fact  of  such  payments,  said  E  F  may  apply  at  the  foot  of  this  decree, 
for  judgment  and  execution  against  the  said  A  B,  for  the  said  sum  of 
three  thousand  dollars,  and  for  his  costs  and  disbursements.  ( The 
terms  of  the  subsequent  order  for  judgment  against  the  contractor  are  so 
plain  and  simple,  that  it  is  unnecessary  to  give  a  form.) 


FORMS.  •  89 

No.     30. 

Complaint  by  the  Owner  Against  the  Contractor  for  the 

Excess. 

[Title  of  the  Cause.'] 

The  plaintiff  in  this  action  complains  of  the  defendant,  and  for 
cause  of  action  shows  to  the  Court  as  follows,  namely  : 

That  heretofore,  to  wit  :  On  the  day  of  in  the  year  one 

thousand  eight  hundred  and  sixty-eight,  the  said  plaintiff  entered  into 
a  contract,  in  writing,  with  the  said  defendant,  whereby  the  said  defen- 
dant, in  consideration  of  the  sum  of  five  thousand  dollars,  to  be  paid 
by  said  plaintiff  to  said  defendant,  on  the  completion  of  his  said  con- 
tract, agreed  to  build  and  erect  for  said  plaintiff  a  brick  dwelling 
house  on  the  corner  of  A  and  B  streets,  in  the  city  and  county  of  San 
Francisco,  according  to  certain  plans  and  specifications  referred  to  in 
said  agreement,  in  writing,  and  to  have  the  same  finished  and  complete 
by  the  first  day  of  August,  1868.  That  the  said  defendant  did  finish 
and  complete  the  said  dwelling  house,  according  to  said  contract,  on 
the  said  first  day  of  August,  1868,  and  the  said  plaintiff  thereupon 
paid  to  the  said  defendant  the  said  sum  five  thousand  dollars.  The 
plaintiff  further  shows,  that  during  the  construction  of  said  dwelling 
hoase  by  said  defendant,  one  C  D  furnished  to  the  said  defendant,  at 
his  special  instance  and  request,  lumber  and  other  materials  to  be  used 
in,  and  which  were  by  said  defendant  used  in,  the  construction  of  said 
dwelling  house  ;  and  the  said  defendant  not  having  paid  the  said  C  D 
therefor,  the  said  C  D,  within  thirty  days  after  the  completion  of  the 
said  dwelling  house,  filed  and  recorded  in  the  Recorder's  office,  in  and 
for  said  city  and  county,  a  claim,  in  writing,  containing  a  statement  of 
his  said  demand,  after  deducting  all  just  credits  and  offsets,  and  show- 
ing that  said  five  hundred  dollars  remained  unpaid,  setting  forth  in 
said  claim  the  name  of  the  plaintiff  as  owner  of  the  said  dwelling 
house,  and  of  the  land  on  which  it  was  erected,  and  also  the  name  of 
said  defendant  as  the  person  by  whom  he  was  employed  to  furnish  said 
lumber  and  materials,  together  with  a  description  of  said  property, 
and  claiming  alien  on  said  property  for  the  same. 

That  afterwards,  to  wit :  On  the  day  of  1868,  the  said 

C  D  commenced  an  action  against  this  plaintiff,  as  the  owner  of  said 
property,  in  the  District  Court  of  the  Judicial  District,  in  and 


90  FOKMS. 

for  said  city  and  county,  to  have  his  said  demand  declared  a  lien  upon 
said  dwelling  house,  and  on  the  land  on  which  it  was  erected,  and  that 
he  obtain  satisfaction  of  said  demand  by  the  sale  of  the  same.  That 
such  proceedings  were  thereupon  had  in  said  action ;  that  said  sum  of 
five  hundred  dollars,  together  with  two  hundred  and  fifty  dollars  for 
said  C  D's  attorney's  fees,  costs  and  disbursements  in  said  action, 
making  in  all  the  sum  of  $750,  were  adjudged  a  lien  on  said  property, 
and  said  property  ordered,  by  the  said  Court,  to  be  sold  to  satisfy  the 
same.  That  said  plaintiff  was  compelled  to  pay,  and  did  pay,  said  C 
D  the  sum  of  seven  hundred  and  fifty  dollars,  and  was  put  to  great 
expense  in  defending  said  action,  in  attorney  fees,  disbursements  and 
costs,  to  wit  :  the  sum  of  two  hundred  dollars.  And  the  said  defen- 
dant, although  often  requested  by  this  plaintiff,  has  not  paid  this 
plaintiff  said  sums  of  money  so  paid,  laid  out  and  expended  by  this 
plaintiff,  as  aforesaid,  wherefore  the  plaintiff  prays  judgment  against 
the  defendant  for  the  sum  of  nine  hundred  and  fifty  dollars,  and  in- 
terest and  the  costs  of  this  action. 

L  M,  Plaintiff's   Attorney. 
(Add  affidavit  of  verification  in  usual  form.) 


No.     31. 

Complaint  of  Lien-holder  for  Repairs  of  a  Dwelling  House 
and  for  a  Lien  Thereon  Before  all  Prior  Mortgages. 

[Title  of  Cause.] 

The  plaintiff  in  the  above  entitled  action  complains  of  the  defen- 
dants, and  shows  to  the  Court  as  follows  : 

That  heretofore,  to  wit :  On  the  day  of  in  the  year  one 

thousand  eight  hundred  and  sixty-eight,  this  plaintiff  was  employed 
by  the  defendant,  C  D,  as  a  carpenter  and  joiner,  to,  and  did,  at  his 
special  instance  and  request,  repair  the  dwelling  house  of  the  said  C 
D,  situate  on  E  street,  in  the  city  and  county  of  San  Francisco,  and 
on  the  piece  or  parcel  of  land  hereinafter  more  particularly  described, 


FOKMS.  91 

by  putting  a  new  roof  thereon  (or  whatever  the  repair  may  be);  and  did 
at  the  like  request  of  said  defendant,  furnish  all  the  lumber  and 
materials  necessary  for  the  said  repair,  by  this  plaintiff,  as  such  carpen- 
ter and  joiner,  of  the  said  dwelling  house;  and  the  said  defendant  did 
thereupon  become  indebted  to  the  said  plaintiff  for  his  said  services, 
work  and  labor,  as  such  carpenter  and  joiner,  in  making  of  said  re- 
pairs, and  for  the  lumber  and  other  necessary  materials  furnished  by 
this  plaintiff  in  the  making  and  completing  said  repairs,  in  the  sum  of 
five  hundred  dollars,  no  part  of  which  has  been  paid  by  said  defendant, 
C  D,  to  said  plaintiff,  although  to  pay  the  same  he  has  been  often 
requested  by  said  plaintiff,  for  which  sum  the  said  plaintiff  demands 
judgment  against  said  defendant  C  D. 

The  plaintiff  further  shows  to  the  Court,  that  within  thirty  days 
after  the  completion  of  the  said  repairs  to  the  said  dwelling  house,  to 
wit  :  On  the  day  of  1868,  he  filed  with  the  Recorder  of 

the  city  and  county  of  San  Francisco,  being  the  county  in  which  said 
dwelling  house  is  situated,  a  claim,  in  writing,  containing  a  true  state- 
ment of  his  said  demand  against  said  defendant,  C  D,  for  his  said 
plaintiff's  services,  work  and  labor  done  and  materials  furnished,  as 
aforesaid,  in  making  said  repairs,  after  deducting  all  just  credits  and  off- 
sets, stating  therein  the  name  of  the  said  C  D,  as  the  owner  of  said  pro- 
perty, and  as  the  person  by  whom  he,  the  said  plaintiff,  was  employed 
to  make  said  repairs,  and  also  a  description  of  the  said  dwelling  house 
and  the  land  on  which  the  same  is  situated,  sufficient  for  identification, 
which  claim  was  duly  verified  by  the  oath  in  writing  of  this  plaintiff, 
attached  thereto,  and  by  virtue  of  which  proceeding  said  plaintiff 
claims  a  lien  on  said  property  for  the  satisfaction  of  the  said  sum  of 
five  hundred  dollars,  so  due  to  him  as  aforesaid,  and  for  his  attorney's 
fees,  costs  and  expenses,  as  the  same  may  be  allowed  by  the  Court  in 
pursuance  of  the  Act  entitled  "  An  Act  for  Securing  Liens  of  Mechan- 
ics and  others,"  approved  30th  March,  1868. 

The  plaintiff  further  shows  that,  as  he  is  informed  and  verily  be- 
lieves, the  defendant,  E  F,  claims  to  have  a  lien  upon  said  premises  by 
virtue  of  a  mortgage  for  the  sum  of  two  thousand  dollars,  .made  and 
executed  by  said  defendant,  C  D,  to  him  prior  to  the  commencement 
of  said  repairs,  and  recorded  before  said  commencement ;  but  this 
plaintiff  claims  that  under  the  Act  aforesaid,  the  said  lien  of  this 
plaintiff,  so  obtained  as  aforesaid,  for  said  repairs,  is  preferable  to  that 


92  FOKMS. 

of  the  said  defendant,  E  F,  by  his  mortgage  aforesaid,  and  prays  that 
such  preference  be  so  declared  by  decree  of  this  Court,  and  his,  said 
plaintiffs  lien,  first  satisfied  out  of  said  premises. 

That  the  land  on  which  the  said  dwelling  house  stands  and  to  which 
it  is  appurtenant,  is  bounded  and  described  as  follows,  viz  :  (Here, 
insert  description  of  land). 

The  plaintiff  demands  judgment  against  the  said  defendant,  C  D, 
for  the  said  sum  of  five  hundred  dollars,  and  his  attorney's  fees,  and  his 
costs  and  disbursements  in  this  action,  as  the  same  may  be  taxed  and 
allowed,  and  that  his  said  demand  be  declared  a  lien  on  said  dwelling 
house  and  so  much  of  said  land  around  the  same  as  may  be  required 
for  the  convenient  use  and  occupation  thereof  ;  that  said  lien  be  pre- 
ferred to  the  lien  by  mortgage  of  said  defendant,  E  F,  and  that  said 
premises  be  sold  to  satisfy  said  plaintiff's  said  demand,  or  for  such 
other  further  or  different  relief  as  the  Court  may  adjudge  the  plaintiff 
entitled  to,  and  as  may  be  agreeable  to  equity  and  good  conscience. 

R  S,    Plainti/'s  Attorney. 

(Add   the  usual  affidavit  of  verification.) 


No.     32. 

Complaint    of    Lien-holder   for    Grading  or  Improving  a 

City    Lot. 

[Title  of  the  Cause.'] 

The  plaintiff  in  the  above  entitled  action  complains  of  defendant, 
and  shows  to  the  Court  as  follows,  viz  : 

That  heretofore,  to  wit :  On  the  day  of  1868,  at  said 

city  and  county,  the  plaintiff  entered  into  a  contract  in  writing  with 
the  defendant,  to  grade  and  improve  a  certain  city  lot  of  land,  in 
said  city  and  county,  commonly  called  a  fifty  vara  lot,  said  city  and 
county  being  an  incorporated  city,  under  the  laws  of  this  State,  by  the 
name  of  "  the  City  and  County  of  San  Francisco  ;"  by  which  said  con- 
tract said  plaintiff  agreed  with  said  defendant  to  (here  describe  what  the 


FOKMS.  93 

improvement  was,  whether  to  "  grade,  fill  in  or  otherwise  improve  the 
"  same,  or  the  street  in  front  of  or  adjoining  the  same"  so  as  to  bring  the 
improvement  within  the  terms  of  the  ninth  section},  and  which  improve- 
ment, by  the  terms  of  said  contract,  was  to  be  finished  and  completed 
by  this  plaintiff,  on  the  day  of  1868,  in  consideration  of 

which,  said  defendant,  by  said  contract,  covenanted  and  agreed  with 
the  plaintiff  to  pay  him  the  sum  of  one  thousand  dollars,  in  United 
States  gold  coin,  on  the  finishing  and  completing  of  said  improve- 
ment. That  the  said  plaintiff  did  commence  the  work  of  said  im- 
provement on  the  day  of  1868,  and  finished  and  completed 
said  improvement,  in  the  manner  and  by  the  time  a§  agreed  by  him  in 
said  contract,  and  did  otherwise,  in  all  respects,  fully  perform  all  the 
covenants  and  agreements  in  said  contract  on  his  part  to  be  fulfilled 
and  performed,  and  the  said  defendant  thereupon  became  indebted  to 
the  plaintiff  in  the  said  sum  of  one  thousand  dollars,  no  part  whereof 
has  been  paid  by  said  defendant  to  said  plaintiff,  although  to  pay  the 
same  he  has  often  been  requested  by  the  said  plaintiff. 

The  plaintiff  further  shows,  that  within  thirty  days  after  the  com- 
pletion of  the  said  improvement  and  the  completion  of  his,  said  plain- 
tiff's said  contract,  to  wit :  on  the  day  of  1868,  he  filed 
with  the  Recorder  of  said  city  and  county,  a  claim,  in  writing,  con- 
taining a  true  statement  of  his  said  demand  against  said  defendant, 
under  said  contract,  after  deducting  all  just  credits  and  offsets,  stating 
therein  the  name  of  said  defendant  as  the  owner  of  said  city  lot,  and 
as  the  person  by  whom  said  plaintiff  was  employed  to  make  the  said 
improvement,  with  a  description  of  the  said  city  lot  sufficient  for 
identification,  which  claim  was  duly  verified  by  the  oath,  in  writing,  of 
said  plaintiff  attached  thereto,  and  duly  recorded  in  said  Recorder's 
office  on  the  day  and  year  aforesaid  ;  that  the  following  is  a  correct 
description  of  said  city  lot,  viz  :  (Describe  it.) 

Wherefore  (conclude  with  prayer  for  judgment  and  for  a  lien,  etc., 
as  in  previous  forms,  with  affidavit  of  verification). 


94  FOEMS. 

No.     33. 

Complaint  of  a  Miner  on   Lien  for  Labor  in  Mine. 

[Title  of  Cause] 

The  plaintiff  complains  of  defendant,  and  shows  to  the  Court  as 
follows,  viz  : 

That  the  defendant  is  a  mining  corporation  under  the  laws  of  this 
State,  duly  incorporated  under  the  corporate  name  of  "  The  El 
Dorado  Mining  Company."  That  the  said  plaintiff  performed  work, 
labor  and  services  for  said  defendant,  in  their  mine  or  mining  claim, 
situate  in  the  county  of  Nevada,  in  this  State,  and  more  particularly 
hereinafter  described,  at  the  special  instance  and  request  of  said  defen- 
dant. That  said  work,  labor  and  services,  consisted  in —  (Here  de- 
scribe the  kind  of  labor  generally.}  That  said  labor  commenced  on 
the  day  of  1868,  and  ended  on  the  day  of  and 

was  reasonably  worth  the  sum  of  one  hundred  and  fifty  dollars,  which 
the  said  defendant,  though  often  requested  by  this  plaintiff  thereto, 
has  not  paid  nor  any  part  thereof. 

That  within  thirty  days  after  the  performance  of  said  labor,  said 
plaintiff  filed  in  the  office  of  the  Recorder  of  said  county  of  Nevada, 
a  true  statement  of  his  said  demand,  after  deducting  all  just  credits 
and  offsets,  stating  therein  the  name  of  the  defendant  as  owner  of 
said  mine,  and  C  D,  who  was  the  superintendent  of  said  defendant 
at  the  time  of  the  performance  of  said  labor,  as  the  person  by  whom, 
on  behalf  of  said  defendant,  the  said  plaintiff  was  employed  to  do  said 
labor,  with  a  description  of  said  mine  sufficient  for  identification,  which 
claim  was  duly  verified  by  said  plaintiff,  and  duly  recorded  in  said 
Recorder's  office,  on  the  day  and  year  aforesaid.  That  the  following 
is  a  description  of  said  mine.  (Insert  description  as  directed  in 
No.  13.) 

Wherefore  plaintiff  demands — (prayer  for  judgment  and  lien,  etc., 
as  in  previous  forms,  claiming  a  lien  on  the  mine  and  appurtenances,  and 
sufficient  space  around  for  the  convenient  use  and  working  of  the  same.) 


FOKMS.  95 

No.     34. 

Advertisement  by    Mechanic  to    Sell    Personal   Property 
Under  Section  15. 

AUCTION       SALE. 

Notice  is  hereby  given  that  I,  the  undersigned,  will  expose  for  sale, 
at  public  auction,  to  the  highest  bidder,  in  front  of  the  Merchants' 
Exchange,  in  California  street,  in  the  city  and  county  of  San  Francisco, 
on  the  day  of  1868,  at  twelve  o'clock  noon,  of  that  day, 

a  certain  wagon  (here  describe  it  generally),  which  said  wagon  was, 
by  A  B,  the  owner  thereof,  left  with  me  as  a  wagon  maker,  to  be  re- 
paired on  or  about  the  day  of  1868  ;  that  I  made  the 
necessary  repairs  to  said  wagon  at  the  instance  and  request  of  said 
A  B  ;  that  said  repairs  were  justly  and  reasonably  worth  the  sum  of 
sixty  dollars,  and  were  completed  on  the  day  of  1868, 
when  said  sum  so  became  due  to  me  from  said  A  B,  for  said  repairs ; 
that  the  said  A  B,  though  often  requested,  has  not  paid  said  sum  or 
any  part  thereof,  and  said  wagon  has  ever  since  the  completion  of  said 
repairs,  and  for  more  than  two  months  since  the  said  work  was  done, 
been  retained  in  my  possession  by  virtue  of  my  lien  thereon,  for  said 
repairs,  and  the  proceeds  of  said  sale  are  to  be  applied  to  the  discharge 
of  said  lien  and  of  my  costs  of  keeping  and  selling  said  property. 

C  D. 


DIGEST 


OF  ALL  THE  DECISIONS  OF  THE  SUPREME  COURT  OF  THE 

STATE  OF  CALIFORNIA  UP  TO  THE  PRESENT  TIME,  IN 

REFERENCE  TO   LIENS  UNDER  THE  DIFFERENT 

MECHANICS'  LIEN  LAWS  EXISTING  PRIOR  TO 

THE    ACT    OF     1868. 

To  enable  those  persons  entitled  to  the  benefit  of  the  statute  of  the 
mechanics'  lien  law  to  avail  themselves  of  this-*extraordinary  remedy, 
all  the  provisions  of  the  law  must  be  strictly  complied  with.  Walker 
v.  Hauss  Hijo,  1  Cal.  185  ;  Bottomly  v.  Grace  Church,  2  Cal.  91. 

A  material  man,  to  enforce  his  lien  for  the  price  of  the  material 
furnished,  must  file  the  notice  of  his  intention  to  hold  a  lien  in 
statute  time,  or  his  lien  will  be  lost.  Walker  v.  Hauss  Hijo,  1 
Cal.  185. 

If  the  verdict  of  a  jury  fails  to  find  a  lien,  the  Court  cannot  render 
a  judgment  essentially  different  from  the  verdict,  and  a  verdict,  so  far, 
will  be  reversed.  Ib.  186. 

Under  Mexican  law,  a  person  who  furnishes  materials  for  the  erec- 
tion of  a  building  has  no  lien  on  the  building  to  secure  payment  for 
the  materials  furnished.  Macondray  v.  Simmons,  1  Cal.  394  ;  Stow- 
ell  v.  Simmons,  1  Cal.  452. 

The  description  of  property  in  a  mechanic's  lien,  as  situated  on 
Battery,  between  Pacific  and  Jackson  streets,  in  San  Francisco,  is  suffi- 
ciently certain.  Rotating  v.  Cronise,  2  Cal.  63. 

A  transfer  ef  property  cannot  defeat  a  lien  which  had  already 
accrued  upon  the  property.  Ib.  64. 

The  materials  must  not  only  have  been  used  in  the  construction  of 
the  building,  but  they  must  have  been  by  the  express  terms  of  the  con- 
act  furnished  for  the  particular  building  on  which  the  lien  is  claimed, 


98  DIGEST. 

and  these  facts  must  be  alleged  and  proven.     Bottomly  v.  Grace, 
Church,  2  Gal.  91  ;  Houghton  v.  Blake,  5  Cal.  240. 

One  who  advances  money  as  a  loan,  although  it  is  expressly  for  the 
payment  of  materials  and  labor  devoted  to  the  erection  of  a  building, 
can  have  no  claim  to  the  benefit  of  the  lien  law,  but  must  rest  upon 
the  equity  of  his  case.  Godeffroy  v.  Caldwell,  2  Cal.  491. 

The  statue  of  April  12th,  1850,  has  placed  liens  for  materials  and 
liens  for  labor  on  the  same  footing,  and  the  proceeds  of  sale  must  be 
distributed  in  conformity  to  the  same.  Moxley  v.  Shepard,  3  Cal.  64. 

The  statute  of  April  12th,  1850,  limits  the  structures  on  which  the 
lien  can  exist  to  buildings  and  wharves.  No  lien  can  therefore  exist  on 
a  bridge.  Burt  v.  Washington,  3  Cal.  246. 

Where  alien  attaches  upon  a  leasehold  interest,  it  so  attaches  sub 
ject  to  all  the  conditions  of  the  lease,  and  he  who  holds  it  can  enforce 
it,  notwithstanding  a  subsequent  failure  of  the  lessee  to  pay  rent  and 
a  surrender  of  the  lease  to  the  lessor.  Gaskill  v.  Trainer,  3  Cal.  339  ; 
Gaskill  v.  Moore,  4  Cal.  235. 

It  is  necessary  to  record  a  mortgage  to  give  notice  only  to  "  subse- 
sequent  purchasers  or  mortgagors  without  notice;"  no  mention  is  made 
of  liens  ;  hence  it  follows  that  a  mechanic's  lien  will  not  precede  an  un- 
recorded mortgage  of  prior  date.  Rose  v.  Munie,  4  Cal.  173. 

Unless  the  answer  of  the  garnishee  discloses  liens  having  a  privity 
of  claim  upon  the  funds  in  his  hands,  judgment  must  be  entered  for 
the  amount  he  admits  due.  Cahoon  v.  Levy,  4  Cal.  244. 

A  County  Court  has  no  jurisdiction  to  enforce  a  mechanic's  lien 
where  the  amount  in  controversy  exceeds  two  hundred  dollars.  Brock 
v.  Bruce,  5  Cal.  279. 

T.  &  Co.  were  in  the  possession  of  certain  property  under  a  verbal 
agreement  of  sale  from  GL,  and  employed  W.  to  erect  a  building  upon 
it.  Before  the  completion  of  the  building,  G.  signed  a  deed  to  the 
land,  and  at  the  same  time  T.  &  Co.  executed  a  mortgage  for  the  pur- 
chase money  :  Held,  that  the  conveyance  and  mortgage  were  but  one 
act,  and  that  no  prior  lien  on  the  general  property  of  T.  &  Co.  could 
have  priority  over  the  plaintiff's  mortgage.  Guy  v.  Carriere,  5 
Cal.  512. 

The  statute  concerning  mechanics'  liens  was  designated  for  two 
classes  of  laborers  and  contractors  :  first,  contractors  or  material  men, 
who  contract  directly  with  the  owner  of  the  building  himself  ;  and 


DIGEST.  99 

second,  laborers,  sub-contractors,  etc., who  have  no  privity  of  contract 
with  the  owner.  Cahoon  v.  Levy,  6  Cal.  296. 

Contractors  have  an  actual  lien  from  the  commencement  of  the 
work  until  sixty  days  after  its  completion  ;  the  subcontractors  or 
laborers  have  their  remedy  by  giving  notice  to  the  owner,  and  their 
lien  attaches  by  the  service  of  such  notice.  Ib. 

A  garnishment  served  on  the  owner,  in  a  suit  against  the  head  con- 
tractor after  the  commencement  of  the  building,  and  before  notice 
served,  must  prevail  over  the  lien  of  a  sub-contractor  or  laborer. 
Ib.  297. 

The  remedy  given  the  sub-contractor  is  simply  in  its  nature  an 
attachment  without  suit,  but  by  notice,  and  having  to  give  notice,  he 
must  yield  to  the  claim  of  the  attaching  creditor.  Ib, 

Mortgages  and  liens  of  record  form  no  exception  to  the  rule  pre- 
scribed by  section  136  of  the  "  Act  to  Regulate  the  Estates  of  De- 
ceased Persons,"  and  the  claims  secured  by  them  must  have  been  pre- 
sented to  the  executor  or  administrator  and  rejected  by  him  before  an 
action  can  be  maintained.  Ellissen  v.  Halleck,  6  Cal.  393  ;  Falkner 
v.  Folsom,  6  Cal.  412  ;  Hentsch  v.  Porter,  10  Cal.  558. 

A  mortgagee  in  possession  has  a  legal  title  against  the  whole  world, 
subject  to  the  rights  of  the  mortgagor  ;  therefore,  where  he  mortgaged 
the  property  and  subsequently  erected  a  building  on  it,  for  the  cost  of 
which  a  mechanic's  lien  was  filed,  the  holder  of  the  lien  cannot  object 
to  the  legality  of  the  mortgage  in  the  face  of  which*  he  contracted. 
Ferguson  v.  Miller,  6  Cal.  404. 

The  lien  of  a  sub-contractor  filed  and  notice  given  to  the  owner  of  a 
building  within  thirty  days  after  the  completion  of  the  work,  under  the 
Act  of  1855,  attaches  from  the  time  the  work  was  commenced,  and 
takes  precedence  over  a  garnishment  served  on  the  owner  against  the 
head  contractor  after  the  work  was  commenced  and  before  the  filing 
and  serving  notice  of  lien.  Tuttle  v.  Montford,  f  Cal.  360. 

The  lien  of  the  mechanic,  artisan  and  material  man  is  favored  in  law, 
because  those  parties  have  in  part  created  the  very  property  on  which 
the  lien  attaches.  Ib. 

A  mechanic's  lien  is  in  the  nature  of  a  mortgage  ;  is  a  charge  upon 
the  land,  and  can  only  be  assigned  in  writing.  Ritter  v.  Stevenson,  t 
Cal.  389. 

Where  the  owner  of  a  lot  contracted  for  the  erection  of  a  house 


100  DIGEST. 

thereon,  and  agreed  to  pay  certain  sums  of  money  as  the  work  pro- 
gressed, and  on  its  completion  to  convey  a  certain  other  lot,  for  which 
purpose  R.  releases  a  mortgage  on  the  lot,  and  during  the  work  the 
owner  of  the  lot  on  which  the  building  was  being  erected  mortgaged 
it  to  R.,  and  subsequently,  on  its  completion,  by  agreement  with  the 
builders,  gave  his  note  for  $10,000,  instead  of  the  lot  he  was  to  con- 
vey, and  the  builders  filed  a  notice  of  lien  and  assigned  note  and  lien 
to  plaintiff  :  Held,  that  as  much  of  the  claim  as  represented  the  value 
of  the  lot  which  was  to  have  been  conveyed  must  be  postponed  to  the 
mortgage.  Soule  v.  Dawes,  7  Cal.  576. 

The  lien  of  the  contractor,  if  filed  in  time,  takes  effect,  by  relation, 
from  the  dace  of  the  commencement  of  the  work,  and  all  persons  who 
deal  with  the  property  during  the  work  are  charged  with  notice  of 
the  claim  of  the  contractor.  But  if  a  party  is  informed  of  the  nature 
of  the  contract  between  the  owner  and  builder,  and  takes  a  convey- 
ance of  the  property  subject  to  it,  no  subsequent  change  of  the  terms 
of  the  contract  can  create  an  incumbrance  which  will  have  priority  of 
his  conveyance.  Soule  v.  Dawes,  7  Cal.  576  ;  Crowdl  v.  Gilmore,  13 
Cal.  56. 

The  following  notice  of  mechanic's  lien  does  not  contain  such  a  de- 
scription of  the  premises  as  the  statute  contemplates  :  "  A  dwelling 
house  lately  erected  by  me  for  J.  W.  Conner,  situated  on  Bryant 
street,  between  Second  and  Third  streets,  in  the  city  of  San  Francisco, 
on  lot  No.  — :"  Montrose  v.  Conner,  8  Cal.  347. 

The  evident  intention  of  the  Mechanic's  Lien  Act  was  to  give 
mechanics  and  artisans  a  lien  on  all  work  done  by  them,  upon  any  de- 
scription of  property,  and  to  give  the  mechanic  a  lien  upon  whatever 
interest  the  person  who  caused  the  superstructure  had.  McGreary  v. 
Osborne,  9  Cal.  122. 

Where  a  civil  engineer's  lien  for  work  done  for  the  defendants  in 
the  construction  of  a  canal  or  ditch  was  filed  in  the  Recorder's  office 
of  the  county  where  the  ditch  is  located  on  the  sixth  day  of  May, 
1856,  and  suit  was  not  commenced  to  enforce  the  lien  until  the  twenty- 
sixth  day  of  January,  1857  :  Held,  that  the  time  fixed  by  statute  for 
the  enforcement  of  the  lien  had  expired  before  the  commencement  of 
the  suit.  Green  v.  Jackson  Water  Co.,  10  Cal.  375. 

A  decree  for  the  sale  of  premises  in  a  suit  to  enforce  a  mechanic's 
lien  has  the  same  and  no  greater  effect  upon  the  rights  of  purchasers 


TTif  7-*) 

. 


DIGEST.  101 

and  incumbrances  prior  to  the  commencement  of  the  suit  that  a  similar 
decree  would  have  upon  the  foreclosure  of  a  mortgage.  Whitney  v. 
Higgins,  10  Cal.  551. 

The  liens  which,  by  the  act  of  April  19th,  1856,  entitled  "  An  Act 
for  Securing  Liens  to  Mechanics  and  others,"  are  required  to  be  exhib- 
ited and  proved  upon  publication  of  notice  in  some  newspaper  of  the 
county,  or  be  deemed  waived,  are  liens  arising  under  that  Act,  and  do 
not  apply  to  other  liens.  II. 

All  persons  interested  in  the  premises  prior  to  the  suit  brought  to 
foreclose  a  mortgage,  or  to  enforce  a  mechanic's  lien  whether  pur- 
chasers, heirs,  devisees,  remainder  men,  reversioners  or  mcumbrancers, 
must  be  made  parties,  otherwise  their  rights  will  not  be  affected. 
Persons  who  acquire  interest  by  conveyance  or  incumbrance  after  suit 
brought,  need  not  be  made  parties.  Ib.  552. 

Where  a  mechanic's  lien  attached  on  certain  premises  January  18th, 
1856,  and  a  mortgage  was  placed  on  the  same  premises  February  21st, 
1856,  and  a  suit  was  brought  subsequent  to  the  execution  and  record 
of  the  mortgage,  to  enforce  the  mechanic's  lien,  in  which  suit  the 
mortgagees  were  not  made  parties,  and  under  the  decree  rendered  in 
such  suit  a  sale  was  made,  and  after  the  expiration  of  six  months,  no 
redemption  being  had,  a  deed  was  executed  to  the  assignee  of  the 
sheriff 's  certificate  :  Held,  that  the  right  of  the  mortgagees  to  redeem 
the  premises  by  paying  off  the  incumbrances  of  the  mechanic's  lien 
was  not  affected  by  the  decree  and  the  proceedings  thereunder,  and 
that  the  purchaser  of  the  premises  upon  a  decree  of  foreclosure  of  the 
mortgage,  having  received  his  deed  upon  such  purchase,  was  entitled 
to  the  same  right  to  redeem.  1  b.  553. 

In  a  mechanic's  lien,  it  is  not  necessary  to  give  the  items  of  the 
work  and  materials  in  the  statement  of  the  lien  filed,  where  the  con- 
tract for  the  construction  of  the  building  is  in  a  sum  in  gross.  Heston 
v.Martin,  11  Cal.  42. 

Neither  the  Mechanic's  Lien  Law  of  1855  or  1856  give  a  lien  upon 
canals  or  ditches.  The  language  of  the  statute  is  "  building,  wharf, 
or  other  superstructure."  A  ditch  is  not  a  building  or  a  wharf,  and 
in  no  sense  can  be  designated  a  superstructure.  Ellison  v.  Jackson 
Water  Co.,  12  Cal.  554. 

Under  the  Mechanic's  Lien  Act  of  1856  the  owner  of  a  building  may 
contract  to  pay  for  it  as  soon  as  completed,  and  he  is  not  liable  to 


102  DIGEST. 

material  men  until  notice  served  on  him,  and  then  only  to  the  extent 
of  the  sum  due  the  contractor  at  the  date  of  the  notice.  Knowhs  v. 
Joost,  13  Cal.  621. 

Under  the  Mechanic's  Lien  Act,  it  is  not  necessary  that  the  account 
to  be  filed  in  the  Recorder's  office  should  remain  in  the  office  after  it 
is  recorded.  Mars  v.  McKay,  14  Cal.  128. 

A  suit  to  enforce  a  particular  lien,  under  the  Act,  is  a  proceeding  to 
enforce  all  the  liens  against  the  property,  and  an  intervention  in  a  suit 
already  pending,  if  filed  within  the  six  months,  is  as  much  a  compli- 
ance with  the  Act  as  an  original  suit.  Ib.  129. 

In  a  suit  to  enforce  a  mechanic's  lien  on  a  ditch,  a  mortgagor  of  the 
ditch  subsequent  to  the  lien  has  no  absolute  right  of  intervention,  and 
where  the  suit  has  been  pending  some  time,  and  the  application  to  in- 
tervene was  made  just  as  plaintiff  was  taking  judgment,  the  application 
was  properly  refused.  Hooker  v.  Ktlley,  14  Cal.  165. 

For  extra  work  on  a  building  by  the  contractor,  in  pursuance  of  the 
general  provision  in  the  contract  for  extra  work,  at  the  will  of  the 
owner,  there  may  be  a  lien  on  the  property,  as  against  a  mortgagee, 
given  by  the  owner  before  the  extra  work  was  commenced  ;  provided, 
the  work  was  done  with  the  knowledge  of  the  mortgagee,  and  without 
objection  from  him.  Soule  v.  Dawes,  14  Cal.  250. 

R.  &  Co.,  defendants,  had  two  mechanic's  liens  upon  certain  proper- 
ty, one  filed  October  30th,  1854,  the  other  filed  December  8th,  1854, 
against  defendant,  Y.  In  1855,  R.  &  Co,  signed  an.  entry  on  the 
record  of  liens,  stating  that  the  liens  did  not  fall  due  until  January  15th, 
1856.  This  was  done  on  the  supposition  that  the  Act  of  1855  permit- 
ted such  extension  of  credit  with  safety.  Discovering  that  such  Act 
in  this  respect  did  not  apply  to  existing  liens,  R.  &  Co.,  November 
16,  1855,  brought  suit  on  the  liens,  obtained  judgment,  sold  the  pro- 
perty, bought  it  in  and  received  a  Sheriff's  deed.  Plaintiff,  as  mort- 
gagee of  the  property  subsequent  to  the  liens,  obtained  judgment,  sold 
the  property,  bought  it  in,  received  a  sheriff's  deed,  and  now  files  his 
bill  to  set  aside  R.  &  Co.'s  judgment  and  sale  on  the  ground  of  fraud  : 
Held,  that  R.  &  Co.  and  Y.  had  a  right  to  rescind  the  arrangement 
made  to  extend  the  lien,  such  extension  having  been  made  under 
misapprehension,  the  debt  being  legal  and  just,  and  plaintiff  having 
acquired  no  rights  which  it  would  be  inequitable  to  disturb ;  that 
such  rescission  is  no  evidence  of  fraud.  Gamble  v.  Voll,  15  Cal.  509. 


DIGEST.  103 

The  fact  that  judgment  on  the  liens  in  this  case  included  a  charge  of 
interest  at  two  per  cent,  given  on  a  prior  extension  of  the  lien,  which 
interest  is  over  and  above  the  original  contract  price  for  the  articles 
for  which  the  lien  was  claimed,  is  not  of  itself  conclusive  proof  of 
fraud  in  the  judgment,  but  such  interest  cannot  be  charged  on  the 
premises  as  against  plaintiff.  Ib.  510. 

As  subsequent  mortgagee,  plaintiff  would  have  a  right,  in  a  proper 
case,  to  redeem  the  premises  from  the  sale  under  the  judgment  of  the 
liens,  by  paying  the  money  justly  due,  interest,  costs,  etc. — he  not 
having  been  party  to  the  suit  by  the  lien-holder.  Ib. 

Plaintiffs  here  cannot  object  that  the  premises  are  not  so  described 
in  the  liens  as  to  pass  title  under  such  sale.  If  from  insufficient  de- 
scription R.  &  Co.  got  no  title,  plaintiffs  have  their  remedy  in  eject- 
ment. Ib. 

In  this  case,  the  only  ground  for  the  interposition  of  equity  being 
fraud,  and  this  being  ignored  by  the  findings,  the  bill  is  dismissed  ;  but 
the  decree  will  be  confined  to  the  disposition  of  the  fraud  alone,  leav- 
ing plaintiff  at  liberty  to  pursue  his  remedy  in  ejectment,  if  he  have 
any,  without  prejudice  from  the  decree.  Ib. 

Under  the  Mechanic's  Lien  Act  of  1858,  material  men,  sub-contrac- 
tors, etc.,  have  a  lien  upon  the  property  described  in  the  act  to  the 
extent — if  so  much  be  necessary — of  the  contract  price  of  the  princi- 
pal contractor  ;  but  they  must  give  notice  of  their  claims  to  the  owner, 
or  the  mere  existence  of  such  claims  will  not  prevent  the  owner  from 
paying  the  contractor,  and  thereby  discharging  himself  from  the  debt. 
By  giving  such  notice,  the  owner  becomes  liable  to  pay  the  sub-con- 
tractors, material  men,  etc,,  as  on  garnishment  or  assignment  ;  but  if 
the  owner  pay  according  to  his  contract,  in  ignorance  of  such  claims, 
the  payment  is  good.  McAlpin  v.  Duncan,  16  Cal.  127. 

The  notice  of  mechanic's  lien,  filed  in  the  Recorder's  office,  need  not 
set  out  the  items  of  the  account  ;  a  general  statement, of  the  demand, 
showing  its  nature  and  character,  and  the  amount  due  or  owing 
thereon,  is  sufficient.  Brannan  v.  Swasey,  16  Cal.  142. 

A  party  having  secured  a  mechanic's  lien  under  the  statute,  does 
not  forfeit  or  waive  it  by  causing  an  attachment  to  be  issued  and 
levied  upon  property  of  the  debtor  to  secure  the  same  demand.  The 
two  remedies  are  cumulative,  and  both  may  be  pursued  at  the  same 
time.  Ib. 


104  DIGEST. 

If  the  party  attempts  to  pursue  them  in  separate  actions,  he  might 
be  put  to  his  election  ;  but  it  is  no  defense  to  an  action  to  enforce  the 
mechanic's  lien,  that  in  a  previous  suit  for  the  same  debt  an  attach- 
ment was  issued  and  levied  upon  the  property  of  the  debtor,  particu- 
larly when  such  suit  has  been  dismissed,  and  nothing  was  realized  by 
the  attachment.  Ib. 

The  notice  of  mechanic's  lien  filed  in  the  Recorder's  office,  need  not 
set  out  the  items  of  the  account.  Nothing  more  is  required  than  a 
statement  of  the  demand  showing  its  amount  and  character.  Selden 
v.  Meeks,  17  Cal.  128. 

Defendant  employed  plaintiff,  a  mechanic,  to  erect  certain  improve- 
ments upon  a  lot  owned  by  the  former.  As  part  of  these  improve- 
ments, plaintiff  was  to  place  on  the  lot  a  small  frame  house,  which  he 
had  previously  constructed,  and  make  certain  additions  thereto  ;  and 
for  the  house  plaintiff  was  to  receive  a  certain  sum.  Plaintiff  com- 
plied with  his  agreement,  and  defendant  gave  his  note  for  the  amount 
due  :  Held,  that  although  the  Mechanic's  Lien  Act  does  not  probably 
afford  a  lien  for  the  price  of  a  building  already  constructed,  and  then 
sold  to  be  put  on  a  lot,  still,  as  in  this  case,  the  building  sold  was  to 
constitute  part  of  a  larger  structure,  the  erection  of  which  was  pro- 
vided for  by  the  agreement  ;  and  as  it  Was  used  in  accordance  with  the 
provisions  of  the  agreement,  it  may  be  regarded  as  material  furnished 
for  that  purpose,  and  hence  within  the  statute  giving  a  lien.  Ib. 

Query:  Whether  a  flume  is  a  "superstructure"  within  the  Mechan- 
ic's Lien  Act  of  1856.  Head  v.  Fordyce,  It  Cal.  149. 

Under  the  Act  of  1856,  the  mechanic  making  the  first  contract,  or 
first  commencing  work  on  a  building,  has  no  priority  over  others  com- 
mencing work  subsequently.  The  statute  places  all  claimants  on  an 
equality,  and  directs  the  property  to  be  sold  and  the  proceeds  applied 
to  all  without  preference.  Crowdl  v.  Gilmore,  18  Cal.  370. 

This  rule  of  equity  would  not  apply  if  some  mechanics  began  work 
before  a  mortgage  was  executed  by  the  owner  of  the  property,  and 
some  afterward.  In  such  case  the  first  lien-holders  would  have 
priority  over  the  mortgagee,  while  the  latter  would  not.  The  first  class 
would  be  paid  in  full  before  the  mortgage  ;  then  the  mortgage,  then 
the  last  class — each  lien -holder  having  equal  claims  with  the  others  of 
his  class.  Ib. 

Where  machinery  is  sold  for  the  purpose  of  being  placed  in  a  build- 


DIGEST.  105 

ing  owned  by  the  vendee,  with  a  view  of  converting  it  into  a  manu- 
factory, and  is  actually  used  for  that  purpose,  the  vendor  has  a 
mechanic's  lien  upon  the  building  for  the  price.  Donahue  v.  Cromartie, 
21  Cal.  80.  % 

Where  the  sale  of  materials,  employed  in  the  construction  or  altera- 
tion of  a  building,  is  made  by  a  written  contract,  which  is  silent  as  to 
the  purpose  for  which  the  articles  sold  are  intended  to  be  used,  parole 
evidence  is  admissible  to  show  such  purpose  and  to  establish  thereby  a 
mechanic's  lien  for  the  price  in  favor  of  the  vendor.  Ib. 

It  is  not  necessary  to  the  establishment  of  a  mechanic's  lien  that  the 
labor  or  materials  shall  be  employed  in  the  making  or  erection  of  a 
building.  It  is  sufficient  if  they  are  employed  in  the  alteration  of  a 
building  to  adapt  it  to  other  than  the  original  uses,  or  to  change  its 
form  or  structure.  Ib. 

Knowledge  by  a  sub-contractor  on  a  building,  that  there  is  an  agree- 
ment in  writing  between  the  original  contractor  and  the  owner,  is  suffi- 
cient to  put  him  upon  inquiry  as  to  the  contents  of  the  writing,  and 
charge  him  with  notice  thereof.  Bowen  v.  Aubrey,  22  Cal.  566. 

When  the  owner  makes  a  contract  for  erecting  or  doing  work  upon 
a  building,  no  sub-contractor  or  person  furnishing  labor  or  materials 
for  the  original  contract  can  acquire  any  rights  against  the  owner  in 
contravention  of  the  terms  and  conditions  of  the  original  contract.  Ib. 

Where  an  original  contractor,  sub-contracts  work  upon  a  building, 
there  is  no  privity  between  the  sub-contractors  and  the  owner,  and  the 
latter  cannot  be  made  liable  upon  the  sub-contract.  Ib. 

P  and  others  contracted,  in  writing,  with  A,  that  the  latter  should 
erect  a  building  for  them,  and  in  the  agreement  covenanted  that  he 
would  not  incumber  or  suffer  to  be  incumbered  the  said  building,  or  lot 
on  which  it  is  erected,  by  any  mechanic's  liens,  or  debts  of  material 
labor-men,  contractors,  sub-contractors  or  otherwise.  A  sub-let  the 
brick  work  to  C,  who  had  notice  of  the  existence  of  the  written  agree- 
ment. Held,  that  C  was  precluded  by  the  condition  in  the  original 
contract  from  acquiring  a  mechanic's  lien  upon  the  building  for  the 
work  done  by  him.  Ib. 

A  mechanic's  lien  which  describes  the  property  as  a  "quartz  mill 
being  at  or  near  the  town  of  Scottsville,  in  Amador  county,  known  as 
Moore's  New  Quartz  Mill,"  contains  a  sufficient  description  to  hold  the 
property,  where  there  is  no  evidence  that  there  was  any  other  quartz 


106  DIGEST. 

mill  at  the  place  so  designated  as  to  render  it  uncertain,  which  was 
intended.     Tibbets  v.  Moore,  23  Cal.  208. 

Where  the  lien  describes  the  land  around  the  building  on  which  a 
lien  is  claimed  in  these  words,  "with  such  convenient' space  of  land 
"around  the  same  as  may  be  required  for  the  convenient  use  and  occu- 
"  pation  thereof,"  the  description  is  also  sufficient  ;  but  it  is  proper  for 
the  Court,  by  its  decree,  to  define  the  amount  and  extent  of  the  land 
connected  with  the  building  which  is  properly  subject  to  the  lien  ;  and 
if  the  decree  follows  the  description  in  the  lien,  it  is  doubtful  whether 
the  purchas*  will  acquire  any  land  beyond  that  covered  by  the  build- 
ing. Ib. 

The  lien  of  the  material  man  accrues  at  the  time  he  has  the 
materials,  which  he  has  contracted  to  furnish  ready  for  delivery  at  the 
place  where  he  has  agreed  to  deliver  them.  Ib. 

Where  the  notice  of  lien  states  that  the  materials  were  furnished  to 
A  &  Co,  when  in  fact  they  were  furnished  to  A,  this  does  not  invali- 
date the  lien,  for  the  material  fact  is,  whether  the  materials  were  fur- 
nished for  and  used  in  the  construction  of  the  building  on  which  the 
lien  is  claimed.  Ib. 

When  a  proceeding  is  commenced  to  enforce  a  lien  under  the  Act  of 
1862,  persons  having  a  lien  by  mortgage  upon  the  property  upon 
which  the  lien  is  sought  to  be  enforced,  have  no  right  to  intervene. 
Van  Winkk  v.  Stow,  23  Cal.  457. 

The  lien  given  by  the  statute  to  the  mechanic  or  the  material  man 
for  work  and  labor  performed  or  materials  furnished  in  the  construc- 
tion of  a  building,  commences  and  attaches  to  the  property  at  the  time 
of  the  commencement  of  the  work  or  the  beginning  to  furnish  the 
materials.  McCrea  v.  Craig,  23  Cal.  522. 

The  reasonable  construction  in  an  allegation  in  a  complaint  that 
"  plaintiff  furnished  the  materials  between  the  6th  of  April,  1862,  and 
the  28th  of  June,  1862,"  is  that  plaintiff  commenced  furnishing  the 
materials  on  the  6th  of  April,  and  continued  furnishing  the  same  from 
time  to  time  up  to  June  28th.  Ib. 

Where  the  contract  was  made  and  the  materials  were  furnished 
while  the  lien  law  of  1858  was  in  force,  but  the  notice  of  lien  was  not 
filed  in  the  Recorder's  office  until  after  the  lien  law  of  1862  went  into 
effect  :  Held,  that  the  lien  was  not  lost,  but  must  be  enforced  in  ac- 
cordance with  the  provisions  of  the  Act  of  1862.  Ib. 


DIGEST.  107 

The  statute  gives  one  who  has  entered  into  a  contract  in  writing  to 
construct  a  building,  a  lien  on  the  same  as  security  for  the  payment  of 
the  money  becoming  due  to  him  according  to  the  terms  of  the  contract, 
but  this  lien  cannot  be  enforced  for  an  amount  exceeding  the  sum  to 
become  due  the  contractor.  Dore  v.  Sellers,  2T  Cal.  591. 

If  a  contractor  engages  to  construct  a  building  in  consideration — 
in  whole  or  in  part— of  a  debt  then  due  from  him  to  the  employer,  or 
of  a  sum  paid  him  by  the  employer  upon  the  execution  of  the  con- 
tract, that  portion  of  the  contract  price  represented  by  the  debt 
or  the  advanced  payment  cannot  become  a  lien  on  the  building.  Ib. 

The  employes  of  the  contractor  have  no  lien  on  the  building  as 
principals,  and  cannot  acquire  a  lien  on  the  building  independent  of 
the  one  existing  on  the  original  contract,  which  they  may  enforce  to 
the  amount  due  them,  so  that  the  same  does  not  exceed  the  sum  for 
which  the  contractor  has  a  lien.  I  b. 

If  the  contractor  has  paid  the  sub-contractor  according  to  the 
terms  of  his  contract  with  him,  and  has  not  made  premature  payment, 
the  employees  of  the  sub-contractor  are  not  entitled  to  demand  any- 
thing from  the  contractor  or  employer.  Ib. 

The  employees  of  the  sub-contractor  cannot  intercept  any  money 
due  from  the  employer  to  the  contractor,  nor  can  they  enforce  the  lien 
of  the  contractor  for  any  of  the  same  beyond  what  is  due  from  the 
contractor  to  the  sub-contractor  at  the  time.  Ib. 

One  claiming  title  to  property  under  a  Sheriff's  deed,  execution  on 
the  foreclosure  of  a  mortgage  may,  in  an  action  brought  by  him  to 
quiet  his  title  against  one  who  claims  under  a  Sheriff's  deed,  executed 
on  the  foreclosure  of  a  mechanic's  lien,  in  which  foreclosure  he  was 
not  a  party,  go  behind  the  decree  foreclosing  the  mechanic's  lien,  and 
show  that  no  lien  in  fact  existed.  Horn  v.  Jones,  28  Cal.  194. 

The  notice  of  a  sub-contractor  or  material  man,  given  to  the 
employer,  claiming  a  lien  under  the  contract  of  the  contractor,  should 
contain  a  statement  that  the  amount  for  which  the  lien  is  claimed  is 
due  over  and  above  all  payments  and  set-effs.  .Davis  v.  Livingston, 
29  Cal.  283. 

The  sub-contractor  or  material  man,  in  order  to  hold  a  lien  for  work 
done  for  or  materials  furnished  to  the  contractor,  must  comply  strictly 
with  the  provisions  of  the  Act.  Ib. 

If  the  sub-contractor  or  material  man  serves  more  than  one  notice 


108  DIGEST. 

claiming  a  lien  for  the  same  account,  the  several  notices  cannot  be 
considered  together  for  the  purpose  of  determining  the  sufficiency  of 
notice  to  hold  a  lien,  but  each  must  stand  on  its  own  merits,  and  the 
lien  will  not  exist  unless  one  of  the  notices  is  sufficient  in  itself  to 
give  it.  Ib. 

The  notice  of  a  material  man  claiming  a  lien  for  materials  furnished 
the  contractor,  need  not  state  the  particular  character  of  the  materials 
furnished,  nor  that  the  materials  were  used  in  constructing  the  build- 
ing, and  if  there  are  several  contractors  the  notice  is  sufficient  if  it 
name  one  of  them.  Ib. 

If  joint  contractors  apportion  the  job  and  compensation  of  construct- 
ing a  building  among  themselves  by  a  written  contract,  to  which  the 
employer  is  not  a  party,  it  is  no  defense  in  an  action  by  a  material  man 
to  enforce  a  lien  for  materials  furnished  one  joint  contractor  that  when 
notice  was  given  there  was  nothing  due  the  contractor  furnished,  under 
the  apportionment.  Ib. 

The  lien  of  the  material  man  or  laborer  can  be  enforced  for  all 
sums  to  be  paid  the  contractors,  and  not  due  when  the  notice  given.  Ib. 

The  right  of  a  material  man  to  a  lien  on  the  laud  and  building,  as 
against  the  owner  for  materials  furnished  the  contractor,  depends  for 
its  existence  upon  the  fact  of  an  indebtedness  from  the  owner  to  the 
contractor  at  the  time  of  or  subsequent  to  the  notice.  Blythe  v.  Poult- 
ney,  31  Cal.  233. 

If  the  contractor  agrees  with  the  owner  to  erect  a  building  and 
furnish  the  materials  for  a  sum  certain,  to  be  paid  as  the  work  pro- 
gresses, with  a  reservation  of  twenty-five  per  cent,  until  completed, 
and  he  abandons  the  work,  having  collected  all  that  is  due  him  except 
the  twenty-five  per  cent.,  one  who  has  furnished  the  contractor  with 
materials  has  no  lien  as  against  the  owner.  Ib. 

Material  men  and  mechanics  who  are  entitled  to  a  lien  on  a  build- 
ing, but  whose  claims  are  several  without  any  community  of  interest 
in  the  claims  themselves,  may,  under  the  statue,  join  as  plaintiffs  in  an 
equitable  action  to  establish  and  enforce  their  lieng.  Barber  v.  Rty* 
nolds,  33  Cal.  491. 

When  a  person  proceeds  to  erect  a  building  without  making  any 
contract  for  the  erection  of  the  same,  material  men  who  furnish  the 
materials  and  mechanics  wiio  labor  on  the  building,  in  pursuance  of 
section  seventeen  of  the  Lien  Law  of  1862,  are  entitled  to  liens  with- 
out making  a  written  contract,  even  if  the  value  of  the  materials  fur- 
nished or  labor  performed  exceeds  two  hundred  dollars.  Ib. 


GENERAL   INDEX. 


Sec.      No.  of 
Page,   of  Act.    Form. 

ACTIONS. 

Within  what  time  actions  on  liens  to  be  brought 26       8 

Must  be  brought  in  district  court 27      10 

Who  must  be  parties  to 27      10 

ALTERATIONS. 

Lien  given  for 5       1 

Preferred  to  all  prior  liens 15       3 

ANSWER 

Averments  in  on  setting  up  want  of  parties 85      . .       26 

AQUEDUCT. 

Lien  given  for  construction  of 5       1 

AKCHITECT. 

To  be  deemed  agent  of  owner 6       1 

His  certificate  of  no  liens  should  be  procured 8 

Form  of  statement  by  contractor  to 55      . .        5 

ARTISAN. 

His  right  to  lien 5       1 

His  lien  on  personal  property  repaired. 35      15 

Common  law  concerning 35 

Form  of  advertisement  of  sale  of 95      . .       34 

How  to  be  published 46      15 

ASSIGNEE  OF  LEASE. 

Purchaser  under  lien  sale  to  be 13       2 

His  liability  as  such 13 

How  he  may  relieve  himself  therefrom 13 

ATTACHMENT. 

May  be  issued  for  debt  secured  by  lien 34      13 

Affidavit  in  such  a  case  what  to  state 45      13 

Amount  collected  thereon  to  be  credited  on  lien 46      13 

ATTORNEYS'  FEES. 

To  be  allowed  by  the  court  to  lien-holder 29      10 

Clause  in  decree  allowing 78      . .       21 

BOND. 

From  contractor  to  owner,  necessity  of 7 


110  INDEX. 

Sec.      No.  of 

Page,  of  Act.    Form. 

Form  of  such  bond 54  . .        4 

BRIDGE. 

Lien  for  construction  of 5  1 

BUILDING. 

Convenient  space  around  same  covered  by  lien 10  2 

Clause  in  decree  determining  Auch  space 79  . .       21 

Necessity  of 30 

Purchasers  right  to  remove  on  paying  rent 16  3 

To  be  removed  in  thirty  days 16  3 

BUILDING  CONTRACT. 

How  owner  may  be  protected  in 8 

Form  of  builder's  contract 48  . .         1 

Shorter  form 51  . .         2 

Bond  for  performance  of 54  . .        4 

CITY  LOT. 

Lien  for  improving 9  9 

Form  of  claim  of  lien  for 65  . .       14 

Form  of  complaint  on  such  lien 90  . .       31 

CLAIM  FOE  LIEN. 

What  it  shall  state 19  5 

When  it  must  be  filed 18  5 

Claim  of  contractor. 56  . .         7 

Verification  of  claim  by  agent 59  . .         8 

Claim  by  material  man 59  9 

Claim  by  journeyman  carpenter 60  . .       10 

Claim  on  contiguous  buildings 62  . .       11 

Claim  by  sub-contractor 63  . .       12 

Claim  by  miner 64  . .       13 

Claim  for  improving  city  lot 65  . .       14 

COMPLAINT. 

On  claim  of  material  man 67  . .       15 

For  grading  city  lot 92  . .       32 

On  claim  of  miner 94  . .       33 

Of  lien-holder  for  repairs 90  . .       31 

By  owner  against  contractor  for  excess 89  . .       30 

CONSTITUTION. 

Protects  rights  existing  before  the  act 11 

CONTRACT. 

What  is,  completion  of 22 

F6rm  of  contract  with  builder 48  . .         1 

Shorter  form 51  ..         2 

With  mason  and  plasterer 53  . .        3 

CONTRACTOR. 

To  file  lien  in  sixty  days 18  5 


INDEX.  Ill 

Sec.      No.  of 
Page,   of  Act.    Form. 

Held  agent  for  owner. 6       1 

His  employees  not  bound  by  his  contract 7 

Form  of  his  claim  of  lien 56      . .        7 

Form  of  statement  by  him  of  no  liens 55      . .        5 

Liens  to  be  deducted  from  his  claim 33      11 

Complaint  against  him  by  owner  for  excess 89      . .       30 

CONTIGUOUS  BUILDINGS. 

How  claim  of  lien  on  to  be  sta  ted 26       7 

Effect  if  not  so  stated 26       7 

Form  of  claim  on 62      . .       11 

DECEEE. 

Must  describe  convenient  space  around  building 30 

Form  of  decree  making  contractor  liable  for  excess 88      . .       29 

Decree  setting  forth  rights  of  different  parties 77      . .       21 

DEMUEEEE, 

To  complaint  for  want  of  parties 84 

DESCEIPTION  OF  LAND   IN  CLAIM. 

What  description  necessary 20 

DIGEST 

Of  the  decisions  of  supreme  court  under  former  acts ....  97 
DITCH. 

Lien  for  construction  of 5       1 

EXECUTION. 

Eeturn  of  sheriff  showing  deficiency 81      . .       22 

Form  of  for  deficiency 82      . .       23 

FENCE. 

Lien  for  erecting 5       1 

INTEEVENTION. 

Petition  of  lien-holder  for 85      . .       27 

LABOEEE. 

Eight  of  to  lien -. 5       1 

When  to  file  claim 19       5 

Form. of  laborer's  claim 62      ..       11 

Form  of  journeyman's  claim 60      . .       10 

LEASE. 

Interest  of  lessee  liable  to  lien 11        2 

Effect  of  lessee  forfeiting  his  interest 11        2 

Lessor  bound  to  receive  arrears  of  rent  from  purchaser ..     11       2 

Lease  cannot  be  divided 14 

Purchaser  to  become  assignee  of 14       2 

His  liabilities  as  such . .  ...  13      .... 


112  INDEX. 

Sec.      Wo.  of 
Page,    of  Act.    Form. 

LIEN  ACT. 

To  be  strictly  construed 25 

Decisions  of  supreme  court  in  reference  to 25 

Difference  between  and  act  of  1862 24 

Kepeals  all  former  acts 36      17 

LIEN. 

How  long  it  continues 26       8 

When  it  attaches 32 

On  what  land  around  building 10        2 

Not  denned  as  to  some  improvements 9 

When  lien  ceases 26       8 

LIS  PENDENS. 

Notice  of 76      . .       20 

MACHINERY. 

Lien  on 5        1 

MACHINIST. 

Bight  to  lien 5        1 

MATEEIAL  MAN. 

His  right  to  lien 5       1       .. 

When  to  file  claim 19       5 

When  it  attaches 32      .. 

Form  of  claim  by 59      ..        9 

Complaint  on 67      ..       15 

When  materials  not  subject  to  execution 31      12 

MINER. 

His  lien  for  labor 5        1 

When  to  be  filed 19       5 

Form  of 64      . .       13 

Complaint  on 94      ..       33 

MORTGAGE. 

Lien  preferred  to  subsequent  mortgage 14       3 

And  to  unrecorded  mortgage 15       3 

Lien  for  repairs  preferred  to  all  prior  mortgages 15       3 

Effect  of  the  law 15 

Complaint  claiming  preference 90      . .       31 

How  preferred  in  distribution  of  proceeds 32      10 

NON-RESIDENT  DEFENDANT. 

How  publication  of  summons  against  to  be  made 28      10 

Form  of  affidavit  for  order  of 73      . .       17 

Order  of  publication  on 74      . .       18 

Order  appointing  attorney  for 75      . .       19 

OWNER. 

When  personally  liable 7       1 


INDEX.  113 

Sec.      No.  of 
Page,    of  Act.    Form. 

Form  of  notice  that  he  will  not  be  responsible 56  16        6 

His  interest  in  the  land  liable 18  2 

His  name  to  be  stated  in  claim 21  5 

To  recover  of  contractor  excess  paid 32  11 

Clause  in  decree  for  judgment  for  excess 88  . .       29 

Form  of  complaint  for  excess 89  . .       30 

Notice  to  contractor  to  defend  action 87  . .       28 

PAKTIES  TO  ACTION. 

All  lien-holders  and  persons  personally  liable  to  be 27      10 

RAILROAD. 

Lien  on 5        1 

RECORDER. 

Claim  to  be  filed  in  office  of 26       6 

His  fees 26       6 

REFERENCE. 

Order  of  where  there  are  various  claims 84      . .       24 

REPAIRS. 

Lien  given  for 5        1 

To  be  preferred  to  all  prior  liens 15       3 

Complaint  for  and  to  have  preference  declared 90      . .       31 

SUB-CONTRACTOR. 

Declared  agent  of  owner 5        1 

-    When  to  file  claim 19        5 

Form  of  his  claim 63      . .       12 

SALE. 

Proceeds  of,  how  divided 31      10 

SUMMONS. 

Form  of  in  action  for  lien 71      . .       16 

TUNNEL. 

Lien  on 5        1 

VERIFICATION  OF  CLAIM. 

Form  of  by  party 58      . .        7 

Form  of  by  agent 49  8 

WAGON  ROAD. 

Lien  on 5        1 

WHARF. 

Lien  on , .  51 


E  R  R,  A  T  A.. 

Page  42,  line  16,  for  "  effects,"  read  "  offsets." 


** 


L,  R.  TOWNSEND  &  E.  WYNEKEN, 


OFFICE,    No.   405    CALIFORNIA   STREET, 


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FRANCISCO. 


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WM.  C.  HoAGLAiro.  JOHN  J.  NEWSOM. 

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ifwfei  mi 


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SAS 


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SAN" 


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No,    328     MONTGOMERY 


BAENETT  McDouQALL.  JOHN  MABQUIS, 


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Montgomery  Block, 


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a 


ncl 


STORES    NEATLY    FITTED    UP. 

Orders  left  at  Hoagland  &  Newsom's,  Architects,  southwest  corner  Sacra- 
mento and  Kearny  streets,  promptly  attended  to. 


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UNIVERSITY  OF  CALIFORNIA  LIBRARY 
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